Complainant

Respondent

Parties

Neil Mcdermott

Dublin Dental University Hospital

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00013824-001

08/09/2017

The Worker is employed as a Technician since 2001. He is paid €45,000 per annum. He has appealed a sanction of written warning.

The Claimantis appealing a sanction of a written warning, which will remain active on his record until 16/03/17. This appeal is made under the Industrial Relations Act 2015 and section 41 of said Act. The claimant in August 2016, lodged a grievance against his manager. The complaint was, that on more than one occasion his manager had berated him in a public area, for what he believed were legitimate questions in relation to his work or his terms and conditions of employment. The complainant, detailed the behavior towards him by his manager and named who may have witnessed this treatment. The claimant believed he was being treated in an unprofessional manner by his manager. This complaint was investigated by an external consulting company. The investigation report findings, that the claimant is alleged to have challenged his manager on many fronts listed below, MAC SUPPORT, and alleged conversation with the Claimant, outsourcing, spending within the department, Screen replacement The claimant is aggrieved that the investigation was not a thorough investigation as information in the form of emails were not included in the report and not all witnesses were interviewed. The claimant believes the application of a sanction was unfair and unjust when all the circumstances are looked at. The claimant and his union believe communication was poor and the cause of the problems faced by the claimant. For this reason, the sanction should be removed from his record.

Background to the case

The claimant made a complaint against his manager in August 2016. The complaint, that in May and June 2016 on three separate occasions, he had raised his voice and on occasion “F…him off”, when the claimant protested and told his manager, he would report this to his Union, his manager asked for the name of the Union rep and said he would “F…him off” also. The claimant set out his grievance in writing. The employer engaged the services of an external Consulting Company, to investigate the complaint. The claimant received the outcome of the investigation in November 2016. The findings that he had undermined his manager on four occasions. The claimant was very disappointed with the findings. He had given the investigation all his supporting evidence and felt the investigator was not impartial and had chosen to use partial information to come to his conclusions. The claimant was subjected to a disciplinary investigation and during the disciplinary investigation the claimant offered the emails and the fact that potential witnesses had not been interviewed as mitigation. Also, that the investigation was not a thorough investigation. This was ignored and the sanction of a written warning was applied. The claimant appealed the warning and set out the grounds in his letter dated 27th of March 2017. The first charge, that he had undermined his manager when he tried to encourage end-users in relation to Mac Support. This is farcical, as the only person the claimant spoke to about this was MO’D, with 15 end users, allegedly canvasing one person could not reasonably be viewed as active campaigning against his manager. The claimant during his appeal offered supporting evidence that his recollection was different, as his concern was the loss or rights on the use of the programming once Mac was removed and with C McC leaving for a career break. MO’D goes off and has a conversation with Professor C and the that version, was taken as a more plausible, than that of the claimants, even though the professor was not present when the claimant had a conversation with M O’D. It’s also worth noting the date of his written testimony, 18/10/2016. The third party hearsay was taken over that of the claimants. This is borne out at Q15, pg. 4 of 36 also, Q36, pg. 7 of 36 and Q 116, pg.21 of 36 interview minuets by the Investigator. In the interview notes of RM admits he had not made any attempt to advise staff of impending changes. It was only after an email from CMcC that the end users became aware of change. The manager goes on to complain that he had a job to do and once it was found out he would bombard him with questions and somehow impinge on his plans. The claimant was asking legitimate questions on how the changes would affect Mac support users. The references made to the claimant getting his Union involved were in relation to the outsourcing of work the claimant would have seen as his personal work, phone systems. The claimant did ask questions of his manager on costs and why money was being spent a certain way. This was not done to irate his manager, it was to understand the cost effectiveness of the spending and moving away from what he seen as a system that was working. If the manager had bothered to explain the rational to him or other team members, the claimant would not have been made out to be a thorn in the managers side. The investigation was used to make allegations against him, such as he is very hard to manage, he is constantly asking questions Why, Why, Why. Again, only during the investigation did he make this claim, that he only has problems with the claimant. In response to this, the claimant has over seventeen years’ services. He has worked under twelve managers during this time. Never was he subjected to a disciplinary until the most recent manager. The claimant in his letter to management dated 15/12/2016, explained, he had found the timeline of the investigation draining. That coupled with his new baby he accepts he should have gone to his managers with his concerns. However manager has admitted he was tired of the constant questions from the claimant. The claimant believed his complaint was about the managers inappropriate and unprofessional manner. The investigation agreed that the manager had acted inappropriately and unprofessionally, in relation to the behavior dates, 15th and 22nd of June 2016. This is not once off behavior as was told by another member of staff not to speak to them in that manner.          

In conclusion, the claimantwould contend that a Written Warning was not warranted when the circumstances are reviewed. He was willing to comply with change, once the opportunity for discussion and input had taken place. The claimant has never failed to take instruction from his manager. The employer had the option of using mediation to resolve the misunderstandings between the parties. The claimant has over 17 years’ service and loves his job. The claimant wants this sanction overturned, as his questions were because of lack of information on change which could affect his position.    

The Claimant alleges that the sanction of a written warning is unjust and unfair when considered in light of the evidence. The Respondent strongly denies this contention. For the reasons set out below, the sanction can only be described as proportionate and reasonable.

The written warning (which has a lifespan of nine months and which is due to expire and be removed on 17 December 2017) was placed on his personnel file following a full investigation and thorough disciplinary process, both of which were conducted in accordance with the Respondent’s Disciplinary Procedure.

The Respondent was acting proportionately and reasonably in placing the written warning, to expire after a period of nine months.

The Employer is the primary supplier of dental education in Ireland, and operates a centre of excellence in the delivery of dental care to patients. It provides primary, secondary and tertiary care on a local, regional and national basis. It is at the forefront of research and development in the fields of dentistry and oral biology. The Claimant is a technician employed in its Information Technology department (the “IT Department”). He originally commenced employment on 8 October 2001, and was offered permanent employment with effect from 16 May 2003. He reports directly to RM, the Information Technology Manager The complaint made to the WRC stems from incidents dating from May and June 2016 involving both persons. Arising from these incidents, he made complaints to the Head of Human Resources, relating to inappropriate behaviour on the part of MR, his use of foul language towards him and attempts by MR to take credit for his work. Those complaints were investigated by an external, independent person The investigation proceeded under the Employer’s Dignity at Work Policy with terms of reference, which were accepted by both parties.

Background to the Written Warning

There are discrepancies between various statements given by him as to the precise dates on which the incidents took place. Despite this, the fact that there were three incidents, and that they each occurred in 2016, is not in dispute. Therefore the incidents have been categorised by reference to the dates given by himself in emails to HR requesting the initiation of formal investigations.

The Incident on 9 May 2016

This complaint related to an incident that took place between himself and his manager on a corridor, regarding the provision of support services to users of Apple Mac (“Mac”) devices in circumstances where the then support provider was due to go on a career break.

He claimed that he had been approached by MO’D of the Microbiology department (the department with the highest number of Mac users). He claimed that MO’D has asked him who would assume responsibility for the provision of Mac support services when the member of the IT team who provided existing Mac support embarked on a career break. However, his claims directly contradicted the witness statement taken from MO’D, who stated that he ad approached her, not the other way around. Moreover, MO’ noted in her evidence to the Investigator that he had advised her that the administration rights to the Mac devices were to be removed, and encouraged her to resist such a move. MO’D immediately reported this approach to the Head of the Microbiology department in turn spoke to RM about the approach made by him. The report concluded at page 75 that the Claimant “…had engaged in a deliberate attempt to undermine RM’s legitimate role and function as IS Manager by actively encouraging end-users to resist change that RM was in the process of implementing in a particular department. In this regard, the investigation found his evidence to be false and inaccurate." The Report concluded that, in unilaterally raising the proposed IT changes with a member of staff from the affected department he had acted in a manner which was “inappropriate, unprofessional and disloyal”. The report went on to express its sympathy with RM’s reaction of extreme dissatisfaction to his actions and, in particular, the manner in which he had undermined him. He took issue with the fact that this incident took place on a corridor in a raised tone, and that at least one student had witnessed it. The Investigator was fully satisfied that RM was completely within his rights to raise the issue at that time, it being the first available opportunity in which he could do so. In acknowledging that a public corridor was not an appropriate venue for such a conversation to take place, the Investigator nonetheless recognised that "the conversation was very short and no firm evidence was presented to suggest that the conversation was overheard".

The Incident on 16 June 2016

This complaint related to an encounter between the Claimant and RM on 16 June 2016 regarding (a) the provision of training ahead of the introduction of new telephone systems in the Hospital; (b) the provision of IT support at weekends; (c) the outsourcing of certain functions of the IT Department; and (d) comments made by him relating to RM’s management of the IT Department. Each of these constituent elements are considered in detail below.

Training: As a member of the IT Department who provides support for the telephone systems, he was anxious to receive training on the new system prior to the roll-out date, in order to be in a position to provide the necessary support to system users. He claimed that he had raised this query with RM on multiple occasions, but had not received a definitive answer.

RM explained that a decision had been made to introduce the new telephone system over the summer months when system traffic was at its lowest. RM further explained that SP Networks (the “System Provider”) would provide support during the initial transition phase, following which training would be provided to members of the IT Department at the start of the new academic year, once all department members had returned from respective periods of annual leave. RM also stressed that he had received an explanation to this effect, and that his allegation that he had not received, and/or had been excluded from training, were unfounded.

The Investigator, in his Report, accepted RM’s decision to delay training for the new telephone system until all members of the IT Department were present and the training could be delivered in one session. Moreover, the Report noted that at no time would the employer be left without any form of support, since the System Provider would provide transitional support until the IT Department members had received training. Ultimately, the Report rejected the contention that RM’s behaviour in respect of this complaint had been inappropriate.

Weekend Support: He alleged that, during his conversation with RM about training for the new telephone systems, RM had remarked that the System Provider would provide weekend support for the new system as the IT Department would not work weekend shifts. He submitted that he found this to be a strange comment, since the IT Department had never been requested to work at weekends. He added that he felt that RM often “missed the boundaries” with the IT Department, by contacting them during weekends and periods of annual leave.

RM explained in response that the provision of weekend support by the System Provider was agreed following experiences of ad-hoc and unreliable weekend support from previous system providers. He stated that the Hospital's senior management had agreed that better weekend support needed to be provided, particularly in light of the fact that the employer’s Emergency Department remained open at weekends. RM further noted, in agreement with his evidence, that he had never asked the IT Department to work weekends, and that he would only contact him at weekends if it was absolutely necessary in order to resolve an issue. The Investigator concluded, that his complaint in this regard was somewhat inconsistent and that, in any event, RM’s actions had not been inappropriate.

Outsourcing Comments: He commented that the provision of weekend support by the Service Provider amounted to the outsourcing by RM of the IT Department’s functions, and proceeded to question RM’s stewardship of the IT Department from a financial perspective. He contended that, in addition to the outsourcing of weekend support, support for Mac devices and ‘Cranberry’ devices (a type of desktop computer widely used) had also been outsourced by RM in his capacity as IT Manager.

In response, RM stated that the reason behind the outsourcing of Cranberry support provision was the requirement for a more professional, 7-day service, in circumstances where there had previously been no weekend support available to users of Cranberry devices. He added that the outsourcing of support services for Mac device users was necessitated by a knowledge-gap that existed between the outgoing member of staff and his replacement. RM noted that this decision had been approved by the employer’s executive team, and that by asking questions of this nature, he had once again undermined RM’s position as IT Manager.

The Investigator found that there was no evidence to suggest that RM had engaged in any unilateral action with regard to the implementation of unapproved initiatives. He concluded that the raising of this complaint by the Claimant was both unnecessary and inappropriate.

Management of the IT Department: Towards the end of the encounter between the Claimant and RMl on 22 June 2016, he alleged that RM had used foul language towards him. RM acknowledged that he had used foul language during this part of the exchange, but explained that it had occurred as a result of the stress and frustration he felt at what he saw as constant questioning by him of his every decision and undermining of his position as IT Manager. RM added that, as many of the decisions questioned by him had originated from the employer’s senior management, he was merely following instructions. The Investigator concluded that in questioning RM’s management of the IT Department in an open plan-area and within earshot of colleagues, he had effected “…a most unreasonable and unacceptable challenge for any direct report to make against their department manager.” The report noted that his behaviour on this occasion was not an isolated event, but was systemic of a pattern of constant challenge and opposition from him to RM’s. In addition, the Report noted that this incident occurred less than one month after his approach to MO’D), which itself “…represented behaviour of a most undermining and disloyal nature.” The Investigator concluded that, given his challenging and confrontational manner, it was understandable that RM “…allowed his frustrations to get the better of him and resorted to the use of foul and inappropriate language.” However, the Report determined that the use of such language by RM was nonetheless inappropriate and unprofessional. The employer has raised this matter with RM and has dealt with it appropriately under the employer’s procedures. The Investigator ultimately found that, taking all the circumstances into account, RM’s behaviour did not constitute bullying for the reasons set out therein.

Incident on 22 June 2016

On 22 June 2016 he and RM were involved in a heated verbal exchange in a shared open-plan office area. He had approached RM with draft instructions to be issued to employees and students in relation to the installation of new ‘smartboard’ screens at the work. RM, as his manager, instructed him to send him the draft instructions prepared to date so that he could review same and circulate a finalised version. He objected, believing that RM would take credit for his work, and asserting that he had been responsible for the project over the preceding weeks. RM in turn objected to the basis on which he challenged his instruction, and the aggressive manner in which he did so. The incident became heated and both parties were left upset at the manner in which it had unfolded.

The Investigator concluded that RM’s behaviour in this instance “cannot be construed as bullying behaviour against him in the context where, as project leader, he had significant involvement in and overall responsibility for the installation of the new screens”. On 23 June 2016, he reported the incident to the Head of Human Resources. Later that day, having met with him and RM separately, HR convened a meeting attended by both parties. HR referred both parties to the Dignity at Work Policy. She listed examples of unacceptable behaviour as outlined in the Dignity at Work Policy, and concluded that by acting aggressively, using obscene language and raising their voices at each other, he and RM had both breached the Dignity at Work Policy. During the meeting, RM apologised to him. It was agreed that HR would meet with both parties in July 2016 to review the situation. At the conclusion of the meeting, he indicated that he intended to take advice on the matter, as he was not comfortable that the incident had been satisfactorily brought to a close.

Claimant’s Requests for Investigation

By letter dated 27 June 2016 he formally requested that the employer instigate an investigation into the above-mentioned incidents between him and RM that took place on 9 May 2016, 16 June 2016 and 22 June 2016. HR responded to him advising him that a request for an investigation into the incident on 22 June 2016 should be made in writing following receipt of her outcome letter; she added that requests for investigations into the incidents on 9 May 2016 and 16 June 2016 should be made under separate cover. By letter dated 7 July 2016 HR requested him to furnish in accordance with paragraph 6.3 of the Dignity at Work Policy, the following information in order to process Mr McDermott’s requests for investigations: a) clear factual description of each incident; b) an indication of how each incident made him feel; c) details, if any, of how he has shown the behaviour in question to be unwelcome; d) details of action that Mr McDermott or others have already taken to resolve the matter informally; and e) any other documentary evidence. He provided details of each alleged incident by letter dated 14 July 2016, By email dated 25 July 2016 HR informed RM that an official complaint had been made against him by the Claimant and that the employer had appointed an external investigator to conduct an investigation.

The Report

On 24 November 2016, the Investigator published its report in respect of the complaints made by the Claimant against RM. Ultimately, while finding RM’s behaviour to be at times inappropriate and unprofessional, the report concluded that his behaviour did not constitute bullying. In accordance with the employer’s Dignity at Work Policy, HR invited both parties to submit comments on the report by 15 December 2016. He responded by letter dated 15 December 2016 in which he made an admission and raised an issue as follows: “I would like to point out that I accept that I may have undermined my manager by speaking to MO’D and in hindsight should have raised my concerns with him directly at the time. I do have one issue with the report that suggests RM’s behaviour does not constitute that of Bullying & Harassment as per policy, "an Isolated Incident of inappropriate Behaviour may be an affront to dignity at work but as a once off incident" as at NO [emphasis added] point in my discussions with either you [HR] as the employer’s Head of HR or the independent investigator, did I suggest that his behaviour was anything other than inappropriate and unprofessional.”

Disciplinary Process

By letter dated 23 January 2017, HR advised him of her belief that the Report raised matters of a possible disciplinary nature with reference to his conduct towards RM. To that end, she informed him that she had invoked the Disciplinary Procedure, and had scheduled a disciplinary hearing for 3 February 2017. This was subsequently rescheduled to 8 February 2017. He was invited to suggest amendments by 17 February 2017, and suggested amendments were submitted by him on 17 February 2017, along with ancillary documentation. By letter dated 16 March 2017, HR expressed serious concerns: a) in relation to the manner in which Mr McDermott undermined RM by meeting with MO’D; b) in relation to his comments to RM regarding the outsourcing of the IT Department’s functions and his management of the IT Department generally; and c) in relation to him undermining and disrespectful behaviour in expressing his grievances to RM about the installation of the ‘smartboard’ screens. HR in the outcome letter advised him that a written warning would be issued to him under paragraph 6.4.1 of the Disciplinary Policy. HR concluded by advising him of his right of appeal to the Chief Executive Officer. The employer believes that, in light of the concerns expressed at paragraph 3.16(a) – (c) above, the sanction applied by the Head of HR is entirely proportionate and reasonable.

Appeal against Written Warning

By letter dated 27 March 2017 he lodged an appeal with the Chief Executive Officer against the written warning. He argued that the instigation of disciplinary proceedings against him had been unjust and that the Report had erred in making references to 'bullying behaviour' by RM on a number of occasions. He asserted that he had never suggested that he had been bullied by RM.

The Chief Executive Officer responded to him by letter dated 19 April 2017 scheduling an appeal hearing for 4 May 2017. The Chief Executive Officer issued his decision in respect of the appeal on 14 July 2017 (there was a delay by reason of difficulties in agreeing the note of the meeting). In his decision the Chief Executive Officer upheld the issuing of a written warning to him. He further advised him that the written warning would endure for a period of nine months (i.e. until 16 December 2017), following which it would be removed provided that no disciplinary issues arose during that period. The Chief Executive Officer's letter concluded by advising him that, should he decide to appeal the decision, the matter should be referred to the WRC.

Conclusion

The employer has, on various occasions since the incidents occurred, sought to rebuild a normal professional relationship between both parties. These efforts, as well as a forthcoming process of mediation due to commence in a matter of weeks have not been enough to persuade him to withdraw his complaint. This highlights his disproportionate and unreasonable behaviour in pursuing his complaint, and undermines the robust processes and procedures which the employer has used with success in other situations.

In summary, it is submitted that: a) The Report, which was the basis for the disciplinary process that led to the written warning at the centre of this complaint, was conducted independently, having considered all relevant information and documentation, and in a thorough and unbiased manner; b) The Disciplinary Procedure was legitimately invoked by HR on the basis of his misconduct as identified in the Report; c) he was afforded full natural justice rights during the course of both the disciplinary and appeals processes, in which he was also represented by an official from his trade union; d) In circumstances where a thorough investigatory and disciplinary process was critical of his actions, and indeed in light of the fact that the written warning is set to expire on 16 December 2017, having been applied for a period of just nine months, it is submitted that the sanction is entirely proportionate and reasonable.  

I note that the Worker raised a grievance.

I note that a thorough investigation ensued.

I note that the Employer decided on foot of the findings of that investigation that the Worker had a case to answer.

I note that disciplinary procedures were invoked resulting in a finding of serious misconduct warranting a written warning.

I note that the Worker was given the right of appeal and he utilised it.

I note the outcome of that appeal was that the sanction was upheld.

I note that he exercised his right to lodge an appeal to the Workplace Relations Commission.

Based on the evidence as presented at this hearing I find that the Employer has acted appropriately in the circumstances.

I find that the Worker was afforded natural justice and fair procedure.

I note that he has accepted on 15/12/2016 “I would like to point out that I accept that I may have undermined my manager by speaking to MO’D and in hindsight should have raised my concerns with him directly at the time.

I find that despite this single admission of wrong doing he has persisted with appeals, both internal and external.

I find that he has not established a basis to overturn the original sanction.

I note that the Employer has also offered mediation between himself and RM, which is very wise indeed.

I find that as this is an industrial relations matter some further comments may be appropriate.

In all employment situations there are managers and employees. At times an employee may not respect their manager, may not agree with them and may at times think that they are better than them.

But your manager is your manager and it is expected that you accept this position and support your manager.

If that become too much to accept then the ball firmly rests in the employee’s court. They either adhere to that situation or they may decide to move on elsewhere.

In this case the Employee has failed to establish any wrong doing with the exception of the inappropriate language used by his manager.

I note that it was found that this resulted from frustration about being constantly questionedby the Employee.

For the above stated reasons, I recommend that this complaint should fail and the sanction of a written warning should stand.

I recommend that the Employee should enter into mediation with an open mind and seek to resolve this matter.

I recommend that Employee accepts that he is not the manager and therefore he is expected to adhere to management instructions as long as they are lawful and fair (nothing has been found to suggest otherwise).

I recommend that the Employee should seriously reflect upon his own attitude to his work and his working relationship with his manager and he should work towards building a proper relationship.

Appeal of Written Warning

Complainant

Respondent

Parties

Neil Mcdermott

Dublin Dental University Hospital

Complainant

Respondent

Anonymised Parties

Technician

Dental Hospital

Representatives

Barnaba Dorda SIPTU,

Louise O’Byrne & Declan McQuillan of Arthur Cox Sols, David Barry, Ita Goggin

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00013824-001

08/09/2017

The Worker is employed as a Technician since 2001. He is paid €45,000 per annum. He has appealed a sanction of written warning.

The Claimantis appealing a sanction of a written warning, which will remain active on his record until 16/03/17. This appeal is made under the Industrial Relations Act 2015 and section 41 of said Act. The claimant in August 2016, lodged a grievance against his manager. The complaint was, that on more than one occasion his manager had berated him in a public area, for what he believed were legitimate questions in relation to his work or his terms and conditions of employment. The complainant, detailed the behavior towards him by his manager and named who may have witnessed this treatment. The claimant believed he was being treated in an unprofessional manner by his manager. This complaint was investigated by an external consulting company. The investigation report findings, that the claimant is alleged to have challenged his manager on many fronts listed below, MAC SUPPORT, and alleged conversation with the Claimant, outsourcing, spending within the department, Screen replacement The claimant is aggrieved that the investigation was not a thorough investigation as information in the form of emails were not included in the report and not all witnesses were interviewed. The claimant believes the application of a sanction was unfair and unjust when all the circumstances are looked at. The claimant and his union believe communication was poor and the cause of the problems faced by the claimant. For this reason, the sanction should be removed from his record.

Background to the case

The claimant made a complaint against his manager in August 2016. The complaint, that in May and June 2016 on three separate occasions, he had raised his voice and on occasion “F…him off”, when the claimant protested and told his manager, he would report this to his Union, his manager asked for the name of the Union rep and said he would “F…him off” also. The claimant set out his grievance in writing. The employer engaged the services of an external Consulting Company, to investigate the complaint. The claimant received the outcome of the investigation in November 2016. The findings that he had undermined his manager on four occasions. The claimant was very disappointed with the findings. He had given the investigation all his supporting evidence and felt the investigator was not impartial and had chosen to use partial information to come to his conclusions. The claimant was subjected to a disciplinary investigation and during the disciplinary investigation the claimant offered the emails and the fact that potential witnesses had not been interviewed as mitigation. Also, that the investigation was not a thorough investigation. This was ignored and the sanction of a written warning was applied. The claimant appealed the warning and set out the grounds in his letter dated 27th of March 2017. The first charge, that he had undermined his manager when he tried to encourage end-users in relation to Mac Support. This is farcical, as the only person the claimant spoke to about this was MO’D, with 15 end users, allegedly canvasing one person could not reasonably be viewed as active campaigning against his manager. The claimant during his appeal offered supporting evidence that his recollection was different, as his concern was the loss or rights on the use of the programming once Mac was removed and with C McC leaving for a career break. MO’D goes off and has a conversation with Professor C and the that version, was taken as a more plausible, than that of the claimants, even though the professor was not present when the claimant had a conversation with M O’D. It’s also worth noting the date of his written testimony, 18/10/2016. The third party hearsay was taken over that of the claimants. This is borne out at Q15, pg. 4 of 36 also, Q36, pg. 7 of 36 and Q 116, pg.21 of 36 interview minuets by the Investigator. In the interview notes of RM admits he had not made any attempt to advise staff of impending changes. It was only after an email from CMcC that the end users became aware of change. The manager goes on to complain that he had a job to do and once it was found out he would bombard him with questions and somehow impinge on his plans. The claimant was asking legitimate questions on how the changes would affect Mac support users. The references made to the claimant getting his Union involved were in relation to the outsourcing of work the claimant would have seen as his personal work, phone systems. The claimant did ask questions of his manager on costs and why money was being spent a certain way. This was not done to irate his manager, it was to understand the cost effectiveness of the spending and moving away from what he seen as a system that was working. If the manager had bothered to explain the rational to him or other team members, the claimant would not have been made out to be a thorn in the managers side. The investigation was used to make allegations against him, such as he is very hard to manage, he is constantly asking questions Why, Why, Why. Again, only during the investigation did he make this claim, that he only has problems with the claimant. In response to this, the claimant has over seventeen years’ services. He has worked under twelve managers during this time. Never was he subjected to a disciplinary until the most recent manager. The claimant in his letter to management dated 15/12/2016, explained, he had found the timeline of the investigation draining. That coupled with his new baby he accepts he should have gone to his managers with his concerns. However manager has admitted he was tired of the constant questions from the claimant. The claimant believed his complaint was about the managers inappropriate and unprofessional manner. The investigation agreed that the manager had acted inappropriately and unprofessionally, in relation to the behavior dates, 15th and 22nd of June 2016. This is not once off behavior as was told by another member of staff not to speak to them in that manner.          

In conclusion, the claimantwould contend that a Written Warning was not warranted when the circumstances are reviewed. He was willing to comply with change, once the opportunity for discussion and input had taken place. The claimant has never failed to take instruction from his manager. The employer had the option of using mediation to resolve the misunderstandings between the parties. The claimant has over 17 years’ service and loves his job. The claimant wants this sanction overturned, as his questions were because of lack of information on change which could affect his position.    

The Claimant alleges that the sanction of a written warning is unjust and unfair when considered in light of the evidence. The Respondent strongly denies this contention. For the reasons set out below, the sanction can only be described as proportionate and reasonable.

The written warning (which has a lifespan of nine months and which is due to expire and be removed on 17 December 2017) was placed on his personnel file following a full investigation and thorough disciplinary process, both of which were conducted in accordance with the Respondent’s Disciplinary Procedure.

The Respondent was acting proportionately and reasonably in placing the written warning, to expire after a period of nine months.

The Employer is the primary supplier of dental education in Ireland, and operates a centre of excellence in the delivery of dental care to patients. It provides primary, secondary and tertiary care on a local, regional and national basis. It is at the forefront of research and development in the fields of dentistry and oral biology. The Claimant is a technician employed in its Information Technology department (the “IT Department”). He originally commenced employment on 8 October 2001, and was offered permanent employment with effect from 16 May 2003. He reports directly to RM, the Information Technology Manager The complaint made to the WRC stems from incidents dating from May and June 2016 involving both persons. Arising from these incidents, he made complaints to the Head of Human Resources, relating to inappropriate behaviour on the part of MR, his use of foul language towards him and attempts by MR to take credit for his work. Those complaints were investigated by an external, independent person The investigation proceeded under the Employer’s Dignity at Work Policy with terms of reference, which were accepted by both parties.

Background to the Written Warning

There are discrepancies between various statements given by him as to the precise dates on which the incidents took place. Despite this, the fact that there were three incidents, and that they each occurred in 2016, is not in dispute. Therefore the incidents have been categorised by reference to the dates given by himself in emails to HR requesting the initiation of formal investigations.

The Incident on 9 May 2016

This complaint related to an incident that took place between himself and his manager on a corridor, regarding the provision of support services to users of Apple Mac (“Mac”) devices in circumstances where the then support provider was due to go on a career break.

He claimed that he had been approached by MO’D of the Microbiology department (the department with the highest number of Mac users). He claimed that MO’D has asked him who would assume responsibility for the provision of Mac support services when the member of the IT team who provided existing Mac support embarked on a career break. However, his claims directly contradicted the witness statement taken from MO’D, who stated that he ad approached her, not the other way around. Moreover, MO’ noted in her evidence to the Investigator that he had advised her that the administration rights to the Mac devices were to be removed, and encouraged her to resist such a move. MO’D immediately reported this approach to the Head of the Microbiology department in turn spoke to RM about the approach made by him. The report concluded at page 75 that the Claimant “…had engaged in a deliberate attempt to undermine RM’s legitimate role and function as IS Manager by actively encouraging end-users to resist change that RM was in the process of implementing in a particular department. In this regard, the investigation found his evidence to be false and inaccurate." The Report concluded that, in unilaterally raising the proposed IT changes with a member of staff from the affected department he had acted in a manner which was “inappropriate, unprofessional and disloyal”. The report went on to express its sympathy with RM’s reaction of extreme dissatisfaction to his actions and, in particular, the manner in which he had undermined him. He took issue with the fact that this incident took place on a corridor in a raised tone, and that at least one student had witnessed it. The Investigator was fully satisfied that RM was completely within his rights to raise the issue at that time, it being the first available opportunity in which he could do so. In acknowledging that a public corridor was not an appropriate venue for such a conversation to take place, the Investigator nonetheless recognised that "the conversation was very short and no firm evidence was presented to suggest that the conversation was overheard".

The Incident on 16 June 2016

This complaint related to an encounter between the Claimant and RM on 16 June 2016 regarding (a) the provision of training ahead of the introduction of new telephone systems in the Hospital; (b) the provision of IT support at weekends; (c) the outsourcing of certain functions of the IT Department; and (d) comments made by him relating to RM’s management of the IT Department. Each of these constituent elements are considered in detail below.

Training: As a member of the IT Department who provides support for the telephone systems, he was anxious to receive training on the new system prior to the roll-out date, in order to be in a position to provide the necessary support to system users. He claimed that he had raised this query with RM on multiple occasions, but had not received a definitive answer.

RM explained that a decision had been made to introduce the new telephone system over the summer months when system traffic was at its lowest. RM further explained that SP Networks (the “System Provider”) would provide support during the initial transition phase, following which training would be provided to members of the IT Department at the start of the new academic year, once all department members had returned from respective periods of annual leave. RM also stressed that he had received an explanation to this effect, and that his allegation that he had not received, and/or had been excluded from training, were unfounded.

The Investigator, in his Report, accepted RM’s decision to delay training for the new telephone system until all members of the IT Department were present and the training could be delivered in one session. Moreover, the Report noted that at no time would the employer be left without any form of support, since the System Provider would provide transitional support until the IT Department members had received training. Ultimately, the Report rejected the contention that RM’s behaviour in respect of this complaint had been inappropriate.

Weekend Support: He alleged that, during his conversation with RM about training for the new telephone systems, RM had remarked that the System Provider would provide weekend support for the new system as the IT Department would not work weekend shifts. He submitted that he found this to be a strange comment, since the IT Department had never been requested to work at weekends. He added that he felt that RM often “missed the boundaries” with the IT Department, by contacting them during weekends and periods of annual leave.

RM explained in response that the provision of weekend support by the System Provider was agreed following experiences of ad-hoc and unreliable weekend support from previous system providers. He stated that the Hospital's senior management had agreed that better weekend support needed to be provided, particularly in light of the fact that the employer’s Emergency Department remained open at weekends. RM further noted, in agreement with his evidence, that he had never asked the IT Department to work weekends, and that he would only contact him at weekends if it was absolutely necessary in order to resolve an issue. The Investigator concluded, that his complaint in this regard was somewhat inconsistent and that, in any event, RM’s actions had not been inappropriate.

Outsourcing Comments: He commented that the provision of weekend support by the Service Provider amounted to the outsourcing by RM of the IT Department’s functions, and proceeded to question RM’s stewardship of the IT Department from a financial perspective. He contended that, in addition to the outsourcing of weekend support, support for Mac devices and ‘Cranberry’ devices (a type of desktop computer widely used) had also been outsourced by RM in his capacity as IT Manager.

In response, RM stated that the reason behind the outsourcing of Cranberry support provision was the requirement for a more professional, 7-day service, in circumstances where there had previously been no weekend support available to users of Cranberry devices. He added that the outsourcing of support services for Mac device users was necessitated by a knowledge-gap that existed between the outgoing member of staff and his replacement. RM noted that this decision had been approved by the employer’s executive team, and that by asking questions of this nature, he had once again undermined RM’s position as IT Manager.

The Investigator found that there was no evidence to suggest that RM had engaged in any unilateral action with regard to the implementation of unapproved initiatives. He concluded that the raising of this complaint by the Claimant was both unnecessary and inappropriate.

Management of the IT Department: Towards the end of the encounter between the Claimant and RMl on 22 June 2016, he alleged that RM had used foul language towards him. RM acknowledged that he had used foul language during this part of the exchange, but explained that it had occurred as a result of the stress and frustration he felt at what he saw as constant questioning by him of his every decision and undermining of his position as IT Manager. RM added that, as many of the decisions questioned by him had originated from the employer’s senior management, he was merely following instructions. The Investigator concluded that in questioning RM’s management of the IT Department in an open plan-area and within earshot of colleagues, he had effected “…a most unreasonable and unacceptable challenge for any direct report to make against their department manager.” The report noted that his behaviour on this occasion was not an isolated event, but was systemic of a pattern of constant challenge and opposition from him to RM’s. In addition, the Report noted that this incident occurred less than one month after his approach to MO’D), which itself “…represented behaviour of a most undermining and disloyal nature.” The Investigator concluded that, given his challenging and confrontational manner, it was understandable that RM “…allowed his frustrations to get the better of him and resorted to the use of foul and inappropriate language.” However, the Report determined that the use of such language by RM was nonetheless inappropriate and unprofessional. The employer has raised this matter with RM and has dealt with it appropriately under the employer’s procedures. The Investigator ultimately found that, taking all the circumstances into account, RM’s behaviour did not constitute bullying for the reasons set out therein.

Incident on 22 June 2016

On 22 June 2016 he and RM were involved in a heated verbal exchange in a shared open-plan office area. He had approached RM with draft instructions to be issued to employees and students in relation to the installation of new ‘smartboard’ screens at the work. RM, as his manager, instructed him to send him the draft instructions prepared to date so that he could review same and circulate a finalised version. He objected, believing that RM would take credit for his work, and asserting that he had been responsible for the project over the preceding weeks. RM in turn objected to the basis on which he challenged his instruction, and the aggressive manner in which he did so. The incident became heated and both parties were left upset at the manner in which it had unfolded.

The Investigator concluded that RM’s behaviour in this instance “cannot be construed as bullying behaviour against him in the context where, as project leader, he had significant involvement in and overall responsibility for the installation of the new screens”. On 23 June 2016, he reported the incident to the Head of Human Resources. Later that day, having met with him and RM separately, HR convened a meeting attended by both parties. HR referred both parties to the Dignity at Work Policy. She listed examples of unacceptable behaviour as outlined in the Dignity at Work Policy, and concluded that by acting aggressively, using obscene language and raising their voices at each other, he and RM had both breached the Dignity at Work Policy. During the meeting, RM apologised to him. It was agreed that HR would meet with both parties in July 2016 to review the situation. At the conclusion of the meeting, he indicated that he intended to take advice on the matter, as he was not comfortable that the incident had been satisfactorily brought to a close.

Claimant’s Requests for Investigation

By letter dated 27 June 2016 he formally requested that the employer instigate an investigation into the above-mentioned incidents between him and RM that took place on 9 May 2016, 16 June 2016 and 22 June 2016. HR responded to him advising him that a request for an investigation into the incident on 22 June 2016 should be made in writing following receipt of her outcome letter; she added that requests for investigations into the incidents on 9 May 2016 and 16 June 2016 should be made under separate cover. By letter dated 7 July 2016 HR requested him to furnish in accordance with paragraph 6.3 of the Dignity at Work Policy, the following information in order to process Mr McDermott’s requests for investigations: a) clear factual description of each incident; b) an indication of how each incident made him feel; c) details, if any, of how he has shown the behaviour in question to be unwelcome; d) details of action that Mr McDermott or others have already taken to resolve the matter informally; and e) any other documentary evidence. He provided details of each alleged incident by letter dated 14 July 2016, By email dated 25 July 2016 HR informed RM that an official complaint had been made against him by the Claimant and that the employer had appointed an external investigator to conduct an investigation.

The Report

On 24 November 2016, the Investigator published its report in respect of the complaints made by the Claimant against RM. Ultimately, while finding RM’s behaviour to be at times inappropriate and unprofessional, the report concluded that his behaviour did not constitute bullying. In accordance with the employer’s Dignity at Work Policy, HR invited both parties to submit comments on the report by 15 December 2016. He responded by letter dated 15 December 2016 in which he made an admission and raised an issue as follows: “I would like to point out that I accept that I may have undermined my manager by speaking to MO’D and in hindsight should have raised my concerns with him directly at the time. I do have one issue with the report that suggests RM’s behaviour does not constitute that of Bullying & Harassment as per policy, "an Isolated Incident of inappropriate Behaviour may be an affront to dignity at work but as a once off incident" as at NO [emphasis added] point in my discussions with either you [HR] as the employer’s Head of HR or the independent investigator, did I suggest that his behaviour was anything other than inappropriate and unprofessional.”

Disciplinary Process

By letter dated 23 January 2017, HR advised him of her belief that the Report raised matters of a possible disciplinary nature with reference to his conduct towards RM. To that end, she informed him that she had invoked the Disciplinary Procedure, and had scheduled a disciplinary hearing for 3 February 2017. This was subsequently rescheduled to 8 February 2017. He was invited to suggest amendments by 17 February 2017, and suggested amendments were submitted by him on 17 February 2017, along with ancillary documentation. By letter dated 16 March 2017, HR expressed serious concerns: a) in relation to the manner in which Mr McDermott undermined RM by meeting with MO’D; b) in relation to his comments to RM regarding the outsourcing of the IT Department’s functions and his management of the IT Department generally; and c) in relation to him undermining and disrespectful behaviour in expressing his grievances to RM about the installation of the ‘smartboard’ screens. HR in the outcome letter advised him that a written warning would be issued to him under paragraph 6.4.1 of the Disciplinary Policy. HR concluded by advising him of his right of appeal to the Chief Executive Officer. The employer believes that, in light of the concerns expressed at paragraph 3.16(a) – (c) above, the sanction applied by the Head of HR is entirely proportionate and reasonable.

Appeal against Written Warning

By letter dated 27 March 2017 he lodged an appeal with the Chief Executive Officer against the written warning. He argued that the instigation of disciplinary proceedings against him had been unjust and that the Report had erred in making references to 'bullying behaviour' by RM on a number of occasions. He asserted that he had never suggested that he had been bullied by RM.

The Chief Executive Officer responded to him by letter dated 19 April 2017 scheduling an appeal hearing for 4 May 2017. The Chief Executive Officer issued his decision in respect of the appeal on 14 July 2017 (there was a delay by reason of difficulties in agreeing the note of the meeting). In his decision the Chief Executive Officer upheld the issuing of a written warning to him. He further advised him that the written warning would endure for a period of nine months (i.e. until 16 December 2017), following which it would be removed provided that no disciplinary issues arose during that period. The Chief Executive Officer's letter concluded by advising him that, should he decide to appeal the decision, the matter should be referred to the WRC.

Conclusion

The employer has, on various occasions since the incidents occurred, sought to rebuild a normal professional relationship between both parties. These efforts, as well as a forthcoming process of mediation due to commence in a matter of weeks have not been enough to persuade him to withdraw his complaint. This highlights his disproportionate and unreasonable behaviour in pursuing his complaint, and undermines the robust processes and procedures which the employer has used with success in other situations.

In summary, it is submitted that: a) The Report, which was the basis for the disciplinary process that led to the written warning at the centre of this complaint, was conducted independently, having considered all relevant information and documentation, and in a thorough and unbiased manner; b) The Disciplinary Procedure was legitimately invoked by HR on the basis of his misconduct as identified in the Report; c) he was afforded full natural justice rights during the course of both the disciplinary and appeals processes, in which he was also represented by an official from his trade union; d) In circumstances where a thorough investigatory and disciplinary process was critical of his actions, and indeed in light of the fact that the written warning is set to expire on 16 December 2017, having been applied for a period of just nine months, it is submitted that the sanction is entirely proportionate and reasonable.  

I note that the Worker raised a grievance.

I note that a thorough investigation ensued.

I note that the Employer decided on foot of the findings of that investigation that the Worker had a case to answer.

I note that disciplinary procedures were invoked resulting in a finding of serious misconduct warranting a written warning.

I note that the Worker was given the right of appeal and he utilised it.

I note the outcome of that appeal was that the sanction was upheld.

I note that he exercised his right to lodge an appeal to the Workplace Relations Commission.

Based on the evidence as presented at this hearing I find that the Employer has acted appropriately in the circumstances.

I find that the Worker was afforded natural justice and fair procedure.

I note that he has accepted on 15/12/2016 “I would like to point out that I accept that I may have undermined my manager by speaking to MO’D and in hindsight should have raised my concerns with him directly at the time.

I find that despite this single admission of wrong doing he has persisted with appeals, both internal and external.

I find that he has not established a basis to overturn the original sanction.

I note that the Employer has also offered mediation between himself and RM, which is very wise indeed.

I find that as this is an industrial relations matter some further comments may be appropriate.

In all employment situations there are managers and employees. At times an employee may not respect their manager, may not agree with them and may at times think that they are better than them.

But your manager is your manager and it is expected that you accept this position and support your manager.

If that become too much to accept then the ball firmly rests in the employee’s court. They either adhere to that situation or they may decide to move on elsewhere.

In this case the Employee has failed to establish any wrong doing with the exception of the inappropriate language used by his manager.

I note that it was found that this resulted from frustration about being constantly questionedby the Employee.

For the above stated reasons, I recommend that this complaint should fail and the sanction of a written warning should stand.

I recommend that the Employee should enter into mediation with an open mind and seek to resolve this matter.

I recommend that Employee accepts that he is not the manager and therefore he is expected to adhere to management instructions as long as they are lawful and fair (nothing has been found to suggest otherwise).

I recommend that the Employee should seriously reflect upon his own attitude to his work and his working relationship with his manager and he should work towards building a proper relationship.

Appeal of Written Warning