ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00010427

Parties:

Complaint(s):

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969,following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

The Respondent did not attend the hearing having advised the WRC on the day before the hearing that they would not be attending.

Summary of Complainant’s Case:

The Complainant is employed as a Care Worker with the Respondent. He submitted that he was subject to a disciplinary hearing on 12th June 2017 regarding his attendance on 22nd May 2017.

The Complainant maintained that following participating in the disciplinary hearing he was advised on 27th of June 2017 that he was being issued with a verbal warning. As he disputed the basis of the decision to sanction him (in that he believed he had legitimate reasons for his absence) he appealed the written warning, and submitted his appeal on 4th July 2017 in line with the organisation’s procedures. He was subsequently advised that the Respondent had no jurisdiction in the administration of disciplinary matters and that he should apply his appeal to another organisation that it is understood is involved in operational matters of the Respondent.

The Complainant then progressed his appeal to the third party but to date has not been afforded the opportunity to have his appeal heard.

The Complainant submitted that the failure to provide him with an appeal process is contrary to the Respondent’s disciplinary procedures and does not reflect the requirements of SI 146/2000 .The Complainant therefore maintained that the Respondent was in breach of its own policies and of the statutory instrument.

He was seeking that the Respondent be required to engage with his trade union to review the operation of the display procedures and that any future disciplinary issues relating to the Respondent are processed in line with procedures that comply with SI 146/2000

Summary of Respondent’s Case:

The Respondent did not attend the hearing or make a submission to the WRC on the matter.

Findings and Recommendation:

Section 13 (3)(a)(i) of the Industrial Relations Acts, 1969 requires that I make a recommendation to the parties to the dispute setting forth my opinion on the merits of the dispute.

Having heard the evidence presented, a review of the Respondent’s Disciplinary Procedure Policy outlines the following appeals procedures: “if you feel that the disciplinary action taken against you is unfair, you may appeal against the decision. Your appeal must be put in writing in the form of the letter, stating clearly the grounds on which you are appealing. Your letter of appeal must be sent within a period of five working days of the date you received written confirmation of the outcome of the disciplinary hearing. Your appeal should be made to the next higher level of management not previously involved in the disciplinary hearing”.

It is clear the Complainant progressed his appeal in writing to a person identified by the Respondent, and this was accepted in the first instance by the Respondent. There is no indication in the policy that the appeal should be made to the third party referred to by the Respondent. However the Complainant did subsequently submit his appeal to the third party as requested, and even after making his appeal to the third party it was not progressed in any event.

SI146/2000-Industrial Relations Act, 1990 (Code of Practice On Grievance And Disciplinary Procedures) (Declaration) Order, 2000, identifies that, inter-alia, the essential elements of the procedures should include the availability of an internal appeal mechanism and that the procedures should be reviewed and updated periodically so they are consistent with changing circumstances in the workplace.

Accordingly, based on the Complainant’s submission and supporting document, I find the Respondent has not adhered to either its own procedures, or to the key elements identified in SI 146/2000 as mentioned above. It also appears the Appeal Procedures are not up to date in light of the response the Complainant received when seeking to have an appeal of the disciplinary sanction imposed upon him.

I therefore recommend the following:

• That the Respondent reviews its disciplinary procedures through a consultative process between management and the Union, and that such a process is completed within three months of the issuing of this recommendation.
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• The Complainant be now afforded an opportunity to have his sanction appealed if he so wishes and that this appeal be heard by an independent third party within 10 days of the issuing of this recommendation.
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Dated:   9.2.18

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