LCR21646

• “The recording of conversations unkowns to another party is not acceptable as evidence . I have considered the correspondence between all the parties. I accept that the sanction is based on a breach of Disciplinary Policy (i.e. insubordination and refusal to carry out a reasonable instruction of a Supervisor). I therefore accept the decision made by the HR Department on appeal is fair and reasonable in the circumstances. I do not find the claim well founded and it fails”.

This matter came before the Court by way of an appeal brought by the Worker against a Recommendation of an Adjudication Officer (ADJ-00007912, dated 27 October 2017). The Notice of Appeal was received by the Court on 22 November 2017. The Court heard the appeal in Dublin on 4 January 2018.

The Worker has been employed by the Respondent Council as a General Operative in its Housing Maintenance Division since 7 June 2006. The Worker was involved in a verbal altercation with his Foreman on 10 November 2016. The Foreman subsequently submitted a written complaint by email dated 24 November 2016 to Mr John McEvilly, Administrative Officer in the Housing Maintenance Division. Mr McEvilly then proceeded to investigate the complaint pursuant to the Respondent’s Disciplinary Policy. He interviewed the Worker, the Foreman and a witness to the altercation that occurred on 10 November 2016. Mr McEvilly determined that the complaint was well-founded and imposed a sanction on the Worker which consisted of: (i) a Final Written Warning to remain on his record for 12 months; and (ii) re-deployment to another depot. The latter element of the sanction had the effect of reducing the Worker’s income by some €75.00 per week as he had been in receipt of a Storeman’s Allowance while employed at his original depot. Mr McEvilly issued his findings and decision by letter dated 4 January 2017.

The Worker availed himself of his right to appeal the disciplinary decision. The appeal was heard by Mr Vincent Healy, Senior Executive Officer with the Respondent. Mr Healy issued his outcome letter on 22 March 2017 in which he (i) reduced the Final Written Warning to a Written Warning; and (ii) confirmed the Worker’s transfer. The Written Warning was stated to be effective from 4 January 2017.

Recommendation

The Court has had the opportunity to consider in some detail the correspondence between the parties in relation to the disciplinary process and also the notes that were retained from the disciplinary and appeal stages. The disciplinary stage, in particular, was conducted in a manner which falls far short of best practice. The letter inviting the Worker to the meeting to investigate the complaint made against him made no reference to the Respondent’s Disciplinary Policy or, indeed, that it was for a potentially disciplinary purpose. The Worker was not furnished with a copy of the written complaint made against him nor was he advised of the evidence given by the witness to the altercation of 10 November 2016. In the course of the hearing, it appears Mr McEvilly considered additional matters concerning the Worker’s alleged misconduct that were unrelated to the events of 10 November 2016.

The Written Warning placed on the Worker’s file following the completion of the appeals process expired on the day prior to the hearing of the within Appeal. It is, therefore, moot. Nevertheless, the Respondent confirmed that a record of the warning would be retained on the Worker’s personnel file but gave a commitment that it would not be used for any purpose in the future.

The Worker is seeking to be re-instated in the depot in which was employed prior to the incident which gave rise to these proceedings. The Court, however, is of the view that the events which occurred on 10 November 2016 have led to an irretrievable breakdown in the relationship between the Worker and his former Foreman. In all the circumstances, therefore, the Court does not recommend the Worker be permitted to return to his previous depot.

However, as the financial detriment that the Worker has incurred as a consequence of his redeployment was not intended to form part of the sanction imposed on him, the Court recommends that the Respondent compensate him for the loss of the Storeman’s Allowance using the established formula of 1.5 times the annual loss (based in this case on a loss of €75.00 per week).

The Court so recommends.

Signed on behalf of the Labour Court



Alan Haugh
LS______________________
23 January 2018Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Louise Shally, Court Secretary.