Worker

Employer

Anonymised Parties

A Barman

A Bar

Representatives

SIPTU

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-00021083-001

10/08/2018

The Worker commenced his employment with the Employer on 31st August 2012. He works in various capacities but primarily as a bar person. The Worker seeks to have final written warning rescinded and expunged from his records.

This complaint was heard in conjunction with ADJ-15896.

SIPTU on behalf of the Worker submits that in June 2018, the Employer had a work altercation where the Employer as a form of punishment and intimidation decided to use a previous work incident, that was dealt with in its totality before, as a “stick to beat” the Worker. SIPTU submits that during the disagreement in June 2018 the Employer stated, “it is in your file” referring to the Report issued in March 2018 for an incident that happened in September 2017. SIPTU submits that the Employer, after the work altercation in June 2018, decided to use again the same incident from September 2017 to discipline the Worker, although almost three months after the issue was concluded. That came as a surprise to the Worker, causing a great amount of confusion as to why he was threatened with a disciplinary warning for an incident that happened in 2017. SIPTU submits that although a copy of the report dated 22nd March 2018 was given to the Worker he was not “sat down and given a warning”. SIPTU submits that it wrote to the Employer requesting procedures that the Employer was relying on in respect of appeal process and reminding the Employer that the matter was already concluded. Further, the Employer was reminded that the principle of double jeopardy is a fundamental constitutional protection. SIPTU claims that it did not receive the procedures upon which the Employer relied on to recommence the process. It was also unsure of the purpose of recommencing the disciplinary proceedings. SIPTU submits that the Worker was denied the right to his trade union representation. In the end, the Worker was issued a final written warning on 8th August 2018 without any disciplinary process. SIPTU submits that the Worker was handed a letter stating that the findings of the report were now implemented and that meant a final written warning. SIPTU submits that, not only had the Employer used frivolous claim to issue the final written warning to the Worker but the Employer also failed to invoke any disciplinary process. SIPTU argues that at no stage was the Worker invited to a disciplinary meeting, where clearly the allegations and any potential sanctions were presented. The Worker had no opportunity to present his case, even though there was no case to answer on this occasion, nor to be represented by his trade union throughout the disciplinary process, had one been invoked. Finally, SIPTU submits that the decision of final written warning failed to specify the appeals procedures. SIPTU argues that this was a deliberate and blatant disregard of fair procedures and natural justice of which the Employer was reminded on many occasions.

SIPTU submits that the Worker was subject to two disciplinary warnings without any disciplinary process. When the Worker and SIPTU sought the procedures the Employer was relying in for disciplining the Worker and to appeal the warnings, the Employer attempted to “window dress” the procedures. SIPTU argues that the Employer designed, orchestrated and conducted the disciplinary matter only to discipline the Worker at all costs. SIPTU argues that the Employer failed to investigate the complaints, failed to conduct proper, thorough and fair disciplinary process and the Worker was denied the right to representation and to appeal. SIPTU submits that the implications of the Employer’s actions and omission brought great stress to the Worker and was unfair.

SIPTU requests that the warnings are rescinded and expunged from the Worker’s records.

The Employer submits that there were two incidents which resulted in two warnings issued to the Worker. The incident relevant to this claim occurred on 1st September 2017 when the Worker physically removed a customer from the bar. As a result of the customer being pushed by the Worker the customer’s hand broke the glass on the door cutting the customer’s hand. The Worker reported the matter to the Employer. The Employer submits that the Worker was asked to prepare a written statement detailing the incident and he did so. The Employer submits that due to the Worker’s personal circumstances the Employer delayed any disciplinary process. The process was further delayed over the Christmas and New Year period as this is a very busy time for the business. The Employer submits that the Employer conducted the initial investigation and appointed Mr M, an external person to conduct the disciplinary hearing. The Worker was informed of that about a week in advance. Mr M met with the Worker on 7th February 2018. The Employer submits that the Worker was offered assistance from a work colleague. The Employer submits that Mr M went through the CCTV footage and the report of the incident with the Worker and asked a number of questions. Mr M issued his report on 22nd March 2018 recommending a formal written warning in respect of the incident. Mr M noted that this is an instance of misconduct that warrants termination of employment as it could be interpreted as an assault by an employee of the Company. However, Mr M took mitigating factors into consideration such as the time period which has passed since the incident, his finding that the Worker did not intend to injure the customer, the Worker’s acceptance of responsibility for his actions and other personal mitigating factors. The Employer submits that the Worker was informed of the recommendation, a copy of the report was given to him and the Worker was informed that it is going to be placed on his file.

The Employer submits that there was no communication on the matter from the Worker until 13th June 2018 when the Employer received a letter dated 2nd April 2018 enquiring about an appeal. The details of the appeal were discussed in the subsequent correspondence. However, this has never been progressed.

The Employer pointed out that the manner in which the union’s representative has been dealing with the matter is eroding any relationship between the Parties. The Employer noted that the Worker remains a valued employee and the Employer would like to return to the previous relationship with the Worker.

In relation to this dispute I find as follows:

The dispute relates to a warning issued in respect of an incident on 1st September 2017 when the Worker forcibly removed a customer from the bar which resulted in an injury to the customer’s hand. The Worker asserts that the process that followed was flawed.

There are a number of assertions SIPTU made on behalf of the Worker.

Firstly, SIPTU argues that the Worker was not “sat down and given a warning”. Therefore, the Employer did not act upon the recommendation of the Report of 22nd March 2018 and the matter was concluded without any disciplinary repercussions. The Worker submits that withholding of the letter of 2nd April 2018 until June 2018 demonstrates that he did not believe that there were reasons to invoke a disciplinary action against him. I find that the Worker was given a copy of the report outlining the recommendation of a formal warning. I find it implausible that the Worker would be given a copy of the Report on a serious disciplinary matter without any communication from the Employer in respect of its outcome.

SIPTU gave an extensive explanation of the general principles of natural justice and fair procedures to the hearing. SIPTU asserts that the Worker was not provided a copy of the complaint against him and the name of the complainant in advance of the hearing. The Employer did not dispute that. I note the Code of Practice stipulates that “These principles may require that the allegations or complaints be set out in writing…”. I note that the Worker reported the incident to the Employer and made a written statement outlining the sequence of events on 1st September and provided it to the Employer. Moreover, the Worker confirmed that he was informed by the Employer “more than a week in advance” of the planned hearing with Mr M. I am therefore of the view that, on balance, the Worker was aware of the details of the allegations against him. The Report confirms that the Worker was given the opportunity to respond fully to any such allegations or complaints.

It was in dispute between the Parties as to whether or not the Worker was given an opportunity to avail of the right to representation at the disciplinary meeting with Mr M. The Employer stated that it was offered to the Worker that a fellow employee assists him but the Worker denied that assertion.

SIPTU also submits that the Worker was not shown the CCTV footage referred to. In that regard I note that the Worker in his letter dated 2nd April 2018 states “I refute that statement as the fist was clearly visible on the CCTV.” He further states in the same letter “5 months after the incident reviewing the footage again…” I therefore find implausible the Worker’s assertion that he was not shown the CCTV footage.

The Worker argues that he did not agree with the findings of Mr M’s report. I find it somewhat puzzling that the Worker would not appeal or in any way question these findings once the copy had been given to him. I note that the Employer allowed for a late appeal in any event and engaged in correspondence with the Worker and SIPTU detailing the proposed process. Moreover, the Employer clearly indicated that if the Worker had any issue with the proposed procedure the Employer would endeavour to adapt the procedures to his satisfaction. I note that in respect of representation the Employer stated “…I am willing to amend the procedures outlined having regard to the seriousness of this matter which could potentially result in dismissal to allow you to bring whomsoever you wish.”

I note that the correspondence from the Employer was quite specific in respect of the proposed appeal procedure (25th June and 3rd July 2018). I find it curious as to why in reply further requests for appeal policy were made and comments in respect of constitutional protections were made but no answers were given in respect of the actual appeal. I find that if the Worker intended to appeal the findings of the report he was given an opportunity to do so. I note that, following some correspondence with the Worker and SIPTU the Employer came to a conclusion that the appeal process would not proceed with.

I note that the process, between the Employer delaying the commencement of it and the Worker delaying the appeal took a significant length of time. I am therefore of the view that the Parties should make every effort to conclude and resolve the matter without any further delay.

Taking all of the circumstances of this case into consideration, I recommend that the Parties commence the appeal process in respect of the written warning issued in respect of the incident of 1st September 2017. I recommend that both sides agree to conduct the process without any further delay and within the spirit of resolution.

I also recommend that the Employer alters its Disciplinary Procedure to include details of the appeals process.

Disciplinary process- appeal process-