ADJUDICATION OFFICER RECOMMENDATION 

Adjudication Reference: ADJ-00016044

Parties: 

Complaint(s):

Date of Adjudication Hearing: 12/10/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1946 – 2015 following the referral of the dispute(s) to me by the Director General, I inquired into the dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute(s).

Background:

The Complainant commenced employment with the Respondent on 20 March 2006. The Complainant was accused of making a racial comment by a fellow employee. An internal investigation was carried out. As a result, the Complainant received a written warning on 4 of May 2018 due to a breach of the Respondent’s Dignity at Work policy against his line supervisor. The Complainant subsequently appealed his written warning which was upheld.

Summary of Complainant’s Case:

The Complainant was accused of making a racial comment by a fellow employee (FE) without any objective justification or objective grounds. The Complainant stated that the Respondent failed to follow procedures on the grounds they never invoked Statutory Instrument 146 of 2000 on grievance and disciplinary procedures. The Complainant totally and utterly refutes he made any racial comment. The Complainant outlined that these allegations were false, frivolous, vexatious and without foundation.

The Complainant outlined thatan internal investigation was carried out that was not impartial or unfair. He outlined that it was a biased investigation that failed to follow due process due to the fact in took almost three months to have the matter investigated. The Complainant received a written warning on 4 of May 2018 which he outlined, caused him an amount undue stress.

The Complainant stated that he was astounded with this false allegation and associated written warning which has caused damage to his character along with his reputation that is tarnished. The Complainant totally and utterly refuted these allegations. The Complainant stated that he had no alternative option but to refer his case to the Workplace Relations Commission on 1 August 2018.

The Complainant stated that the first Interview was performed by A1 on 27 March 2018 with the Complainants direct manager. The Complainant outlined that it is his contention that an independent manager should have been brought in to investigate this case in an impartial and independent manager the employer refused to allow same thereby contravening the right of the respondent to follow due procedures. The Complainant believes he was treated in a very unfair manner due to the fact he felt he was being labelled as a racist. Thus, in order for the Complainant to receive the terms of natural justice and the standard of fair and reasonable procedures he had no option but go ahead with this flawed process. The Complainant states that the interview was not in accordance with due process.

The Complainant stated that FE is known friendly as the “turkish barber” and that this is part of friendly banter and nothing more. The complainant stated that he himself is English and is called several names. The Complainant advised A1 that he used the term in the past but not on the night of the allegation. The Complainant is amazed that FE made a complaint about being called that name as he has been called that name for years. The Complainant outlined that he has never nor would he use any racists remarks against any of his fellow colleagues.

During his meeting with A1, the Complainant outlined that he had taken a lot of abuse from his colleagues in the past and he just let it go by as friendly banter and has not made a complaint about this.

The Complainant outlined that another employee stated he seen the Complainant enter the canteen however the Complainant stated that this was impossible given that this employee had his back to the door. The Complainant stated that there was a breach of confidentiality as the Respondent handled this case very unfairly and unprofessionally as the matter in dispute was rampant throughout the workplace.

The Complainant stated that the length of the process was very excessive. The Complainant stated he was shown no dignity or respect during the entire process. The Complainant stated he felt he was labelled guilty from the very start and as a result he has been trying to prove his innocence ever since.

The Complainant argues that the process of the interviews was not performed in the correct order. The Complainant stated he was not interviewed first but last and his e-mail which was sent at the start of the process is a different statement from his interview statement. The Complainant stated that there were witnesses at the table at the time of the alleged incident however, none of them were interviewed by the Respondent until the Complainant insisted they would be at disciplinary stage. The Complainant stated that each witness was asked “did you hear [the Complainant] say anything at the table?" to which all answered “No”. The Complainant stated that the witnesses were asked leading questions. A1 outlined in his findings that just because the witness did not gear anything, doesn’t mean that it wasn’t said by the Complainant. A1 found that the Complainant called FE a name which was a racist remark when he entered the canteen. The Complainant stated he had his back to the door at the time of the alleged incident and so A1 stated that the Complainant must have seen FE’s reflection in the window. The Complainant stated that he has his glasses removed at the time of the incident which would have made him seeing FE in the reflection of the window as he is short sighted and so would not have been able to see anything.

The Complainant stated that he never admitted to saying he made a remark of any sort about FE. The Complainant admitted passing such a remark to FE in the past but stated that he was not the instigator as it was said by another member of staff who was never interviewed during the process.

The Complainant stated that in the hand written notes of the interview with A1 it shows the Complainant never admitted to saying he made a racial remark however in the typed notes it stated the Complainant had admitted to it. The Complainant raised this point with A1 who performed the disciplinary interview and he still referred to the typed notes even though the Complainant reiterated he did not make any racial remark nor would he ever.

The Complainant also put forward this argument to the Human Resource Manager at his first appeal and once again he referred to the frivolous and vexatious complaints as made against him were false. During the interview with the Human Resource Manager the Complainant stated that the he was going on holiday’s in two weeks’ time and Human Resource Manager promised that he would have a decision to the Complainant before his annual leave commenced on Wednesday 20 June 2018. The letter was posted on the 20 June 2018 and so as a result the Complainant had not received same as he was out of the country when the letter was delivered. Given that this resulted in the Complainant not knowing the outcome in advance of him commencing annual leave, this caused an amount of undue stress and had major impact on the enjoyment of his annual leave.

The Complainant stated he has full respect for all multi-cultural divides. The Complainant stated that when A1 moved him onto another shift, he informed his Shop Steward he was being directly labelled as a racist. The Complainant stated that he was being targeted as a racist which caused damage to his character and his reputation along with the fact his reputation has been tarnished.

The Complainant stated that the terms of natural justice or the standard of fair and reasonable procedures were not afforded to him. The Complainant stated that he was denied due process due to the failure of the Respondent to follow due procedure as set out in the Code of Practice on Grievance and Disciplinary Procedures SI 146 of 2000 as it took over three months to investigate the case.

The Complainant stated that no statements were authenticated along with the fact he never received a copy of the findings of the investigation. The Complainant stated that the Respondent failed to follow procedures. The Complainant wishes to make it abundantly clear he is not a racist. The Complainant stated that the Respondent has no credible evidence they can rely on to justify that he made a racial remark. The Complainant stated that the sanction of a written warning was not objectively justified and so is seeking a full written apology and the written warning rescinded and expunged from his file.

The Complainant is seeking full written apology in order to have his character restored and his reputation vindicated. The Complainant also stated that the Respondent did not offer him the EAP service since.

Summary of Respondent’s Case:

The Respondent stated that at 02:16am on the morning of 22 March 2018, the line supervisor (LS) sent an email to various members of management claiming that he had been the victim of harassment at work. In this email LS outlined the nature of the statement that was allegedly made and that it had been confirmed to LS by a 3rd party present on the night in question. The alleged statement was made during the previous night shift, on 21 March 2018 by the Complainant. The alleged statement referred to LS, a Turkish national, as being a ‘turkish tinker.’

LS having left the factory in a state of distress in the early hours of the morning was subsequently seen by a local GP and was certified absent from work due to work related stress on 26 March 2018.

In line with the grievance procedure and as per guidelines laid out in the Company’s Dignity at Work Policy, the prevention of Bullying & Harassment policy, the Complainant was invited to a meeting on 27 Match 2018 where the nature of the allegation was put to him. The Respondent stated that the Complainant was allowed representation and was accompanied to this meeting by the shop steward. This meeting was held by A1.

During this meeting, the Complainant stated that he had used the statement (‘turkish tinker’) in the past but this had been purely in banter. The Respondent stated that in several subsequent meetings, the Complainant denied having ever used this statement.

The Respondent stated that another member of staff claimed to have heard the statement directly from the Complainant on the night in question. Other staff interviewed by the Respondent stated that they had either heard the statement indirectly or were not paying attention at the time.

On 29 March 2018 at 17:30pm, the Complainant, once again accompanied by the shop steward met with A1. This meeting was at the Complainants request. The Respondent stated that during this meeting the Complainant threatened A1 with a call from his solicitor as he claimed that he was now being labelled a racist. The Respondent stated that at no time did A1 use the term racist.

On 05 April 2018, LS was also interviewed by A1 and A2 following agreement that medically he was fit to take part in an interview relating to the matter. LS confirmed that he felt that the statement used was racist to him, and that there had been other issues with the Complainant previously. LS stated that there were no other issues relating to Dignity at Work from other colleagues or those he had supervised.

Having concluded the initial investigation, A1 then handed the matter over to a separate independent team to review this matter as being a possible disciplinary breach. This review was undertaken by D1 who concluded that the matter warranted further action.

On 06 April 2018, the Complainant was invited to a disciplinary hearing on Wednesday 11 April 2018. In this letter of invitation, the Complainant once again had the nature of the allegation clearly put to him, he was once again informed of his rights to a fair hearing, his right to representation, and was once again provided with copies of both company policies. Although the Complainant had been previously provided with notes from the initial investigations, the meeting was postponed until 11:15 to ensure that the Complainant had all relevant notes at his disposal. When this meeting went ahead, the Complainant disagreed with the content of the notes.

Due to disagreements around the content of the notes, the meeting was not reconvened until 19 April 2018. At this meeting, M1 had stated that the Complainant had been happy with the notes but that had now changed. The Complainant claimed that he had been ‘badgered’ by M1 to state the notes were correct.

The hearing was further reconvened to allow time for further investigations to take place. This meeting took place on 25 April 2018 following further investigations. These extra investigations into the matter, carried out on 23 April 2018, did not yield any new outcomes.

On 2 May 2018, there was a fourth and final meeting to bring the matter to an end. Although the Complainant had requested that the notes be reviewed, and that further interviews be carried out, all of which was granted by M1, he complained about the length of the process.

Having reviewed the evidence as presented to him, including the fact that the Complainant had admitted to using the term in the past, and the direct evidence of another employee involved, M1 issued the Complainant with a formal written warning on 04 May 2018. In this letter, the Complainant was informed of his right to appeal, and was provided with all notes from the various disciplinary hearings.

Having appealed the written warning, the Complainant was written to by M3 stating that he would hear the Complainants appeal on 6 June 2018. The Complainant was once again was informed of his right to representation at this appeal hearing and that the appeal hearing would be carried out in line with the relevant procedures.

The Complainant attended this meeting on 6 June 2018 accompanied by 2 shop stewards and two members of the Union.

In a comprehensive response from 19 June 2018, M3 stated that following all the evidence as presented to him, the warning was warranted and should be upheld.

The Respondent stated that the Complainant was afforded all benefits of fair procedure, in line with the company’s established policy, the LRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the principles of natural justice. The Respondent stated that the Complainant was informed in advance as to the nature of the complaint against him, indeed he was fully aware of the complaint against him as evident from the first meeting. The Respondent stated that the Complainant was afforded the right to representation, which he exercised, with 3 different shop stewards present at various meetings. The Respondent stated that the Complainant was further provided with a fair and impartial investigation and several disciplinary hearings, at which he was given an opportunity, on every occasion, to respond to the allegation against him. All the evidence in its entirety was considered, including the Complainants representation before any decision was made or action taken. The Complainant was also afforded the right of appeal. In light of all of the above, the Respondent is firmly of the opinion that the warning issued to the Complainant was procedurally fair in all respects.

Recommendation

Section 13 (1) and (2) of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute.

In accordance with Section 13 of the Act I declare this complaint fails and I recommend that the warning stands as the Respondent followed fair process when the complaint was made to the Respondent. There were 3 very clear and distinct stages to this process, an investigation stage, a disciplinary stage and an appeal stage, all carried out by independent managers within the organisation.

Dated:   04/12/18

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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