Worker

Employer

Anonymised Parties

A Production Operator

A Production Company

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-00009898-001

24/02/2017

The worker has worked with the employer since 1988 processing cutting products. In May 2016, a dispute arose with workers which resulted in the Labour Court issuing a recommendation in June 2016. As it was believed that the Employer was in breach of the Labour Court Recommendation, a ballot for industrial action took place in the form of a 24-hour work stoppage to commence Wed 21st Sept. This proposed industrial action was the subject of much media interest and a last-minute conciliation conference took place on the 21st September in an effort to avert the stoppage and which resulted in a set of proposals that were eventually agreed on by the members in November 2016.

The worker was a member of the union’s negotiating team that came up with a set of proposals but it was alleged that the worker had breached confidential proprietary information and breached use of social media and communications with regard to a media article that appeared on 23rd September 2016 and which he was quoted as provided the information.

The worker received a Final Written Warning on 15th December 2016 which was to stay on his file indefinitely. He appealed this and the final written warning was maintained but reduced to a period of 3 years.

It was detailed by the worker that he was invited to a disciplinary hearing which denied him natural justice in so far as it was deemed that he had failed and not ‘alleged’ to have failed to abide by procedure.

Furthermore, it was detailed that:

The worker was not informed of the allegations against him prior to the hearing.

A full and independent investigation into the alleged breach of policy did not occur.

Those hearing the disciplinary hearing and appeal were compromised and were not independent.

The worker had not received a copy of the code of conduct which he was alleged to have been in breach of.

There was no evidence that the worker had breached proprietary information and alleged breach of proprietary information could have come from other sources

The worker was under undue stress due to the long and exhaustive nature of the discussions.

The sanction of allowing the final written warning on file for 3 years was in breach of the employer’s own policy.

The employer outlined their uncertainty at the rational for the referral of the claim and to whether it was in relation to the sanction or the severity of the sanction.

Notwithstanding that, the company outlined that the finding made against the worker was done on foot of a serious matter as a result of the direct behaviour of the worker.

Furthermore, the employer considered dismissal such was the seriousness of the issue but choose to apply a measure less than that.

It was outlined that there is precedent to apply flexibility and extend a warning for a period great than that which is provided for and which in the past was beneficial to the union.

There had been a very serious breach of confidentiality by the worker at a very sensitive time and his breach of confidentiality caused difficulties within the organisation with customers and employees and could have in effect caused negotiations to have broken down and could have also impacted the long-term survival of the company.

While accepting that it occurred during a highly charged and sensitive dispute, the employer was measured consistent and balanced in favour of the worker.

During this dispute, there had been pervious issues regarding ‘leaks’ which the union were made aware of and impacted not just with regard to avoiding industrial action but also to safeguard the wellbeing of the organisation.

The substantive matter and content were serious and is referenced within the code of practice where it is referenced as Gross Misconduct.

The employer acted within this policy and the worker was afforded fair procedures and natural justice throughout.

It was clear from the evidence of both sides that the incident which led to the warning occurred at a very sensitive time and during a period of much industrial unrest at the company with many internal and external stakeholders showing an interest in the industrial unrest.

I have examined the company’s disciplinary policy and also their code of conduct regarding the alleged breaches. I also note that the union had been made aware of the difficulties which earlier “leaks” were causing.

It is clear that the warning was given for direct quotes attributed to the worker by a journalist in an article that appeared. While the worker did not dispute that they were his quotes he alleged that the information was already in the public domain. While it is surprising how much specific detail and what I would regard as ‘sensitive’ information the worker provided to a journalist considering that negotiations were still ongoing, it is clear that the employer has breached their own policy which clearly states that a final written warning will remain “on his/her personnel file for 1 year”. I also note that further disciplinary action which was open to the employer including suspension as a precursor to dismissal was not utilised.

On that basis and with regards to the unique circumstances of this case, including that it was a highly sensitive stress-full time for all concerned, I recommend that the Final Written Warning should remain but should stay on file in line with the employer’s own policy of 1 year only from the date which it was given

The substantive matter and content were serious and is referenced within the code of practice where it is referenced as Gross Misconduct.

The employer acted within this policy and was afforded fair procedures and natural justice throughout.

I recommend that the Final Written Warning should stand but in line with the employer’s own policy should stay active on the worker’s file for 1 year only from its date of issue.

Final written warning, industrial relations act, industrial action