Complainant

Respondent

Anonymised Parties

Driver

Warehousing & Distribution

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-00015128-001

19/10/2017

The Worker is employed as a Driver since 2007. He has appealed the sanction of a final written warning.

Around February 2017 the Employer invited the Worker to an investigation into three complaints made against him, despite the fact that the complaints were made in January. He attended an investigation meeting on 10th February 2017 and responded to each of the allegations. He was never given the opportunity to respond to the meetings held with the complainants. The investigation report made a number of findings. Regarding the first, it found on the balance of probability that the complainant’s account was more accurate. Regarding the second complaint, it found that he did display aggressive behaviour to another employee in the tone used. In the third complaint, it was found that he did use aggressive behaviour towards an employee. The matter was escalated to a disciplinary investigation held on 29th June 2017. The outcome was that he was issued with a final written warning. The Employer relied upon previous references to behavioural issues on his file. He appealed the sanction but it was upheld.

It is the Worker’s position that he was not afforded fair procedure during the investigation and disciplinary process. The finding on the first complaint is based on one version of events over another is only supported by reference to a breach of confidentiality. The alleged incident occurred on an undefined date and time weeks prior to being asked about it and so he had no recollection of it. There were no witnesses. There can be no finding on the balance of probability where there are two conflicting accounts. The breach of confidentiality (reading to colleagues the complaint details) does not mean that it is more likely than not that he did what he is accused of. On the balance of probability, the evidence is best 50/50 and the legal maxim is simple; “better is the position of the Defender”. Regarding the second allegation it is the Worker’s position that it was his manager who had used an aggressive tone towards him. Again, the Employer has relied upon the balance of probability without a sound basis for making that finding. The balance of probability does not mean that one prefers the evidence of one over another but rather it is more likely than not. Again, the investigator has no sound basis for making such a finding. In the third complaint, it was found that he had displayed aggressive behaviour. There was a follow up email where a name was misspelled. He apologised for it yet it was relied upon to arrive at its findings. The Investigator made a finding about an incident that was not part of the investigation. The Investigator found that the Worker had exhibited bullying and aggressive behaviour despite the fact that the incidents were one off incidents, whereas the definition of bullying is repeated inappropriate behaviour. The matter of the delays in making the complaints after they allegedly had occurred was never addressed. The Employer further acted unfairly by relying upon his personnel file where there were references to past behaviours. The decision to issue the final written warning was based on the Employer’s attitude to the Worker, not on the complaints received. The Employer went outside the complaints to determine the sanction. This has breached the right to fair procedures and natural justice and they acted disproportionately in relation to the actual complaints. He is seeking that the final written warning is deemed unfair, unjust and procedurally flawed and that a recommendation is made that the warning should be removed.

On 3rd February, the Worker was invited to an investigation meeting. He was advised in writing the purpose of the meeting, he was advised that this process could result in disciplinary action and he was offered the right of representation. He received copies of the complaints. A number of meetings were conducted. A draft investigation report was issued to him on 30th March, he was outsick at the time, he refused to accept it. It was posted to him on 5th April 2017. He was invited to comment on it but he refused to do so. The report concluded that he exhibited bullying and aggressive behaviour towards managers and staff. It was also felt that he had not co-operated with the investigation. He was issued with the final report and called to a disciplinary meeting. The letter of invitation set out the purpose of the meeting, the allegation against him and the right of representation. The disciplinary hearing took place on 29th June and he was accompanied with his full-time union official. The complaints were reviewed and he was given the opportunity to respond to the allegation. The outcome was that he was issued with a final written warning. He appealed the sanction but it was upheld. It is their position that the Investigator had found that the Worker had exhibited bullying and aggressive behaviour and was at all times afforded the benefit of fair procedure. The sanction of a final written warning was fair and proportionate.  

I find that it accepted that the purpose of this adjudication is not to re-investigate the circumstances that led to the issuing of the disciplinary sanction, but examine if the Employer had conducted a fair investigation and had applied fair procedure.

I refer to the Employment Appeals Tribunal case O’Riordan v Great Southern Hotels, UD 1469/2003 it stated “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

While that case dealt with dismissal nevertheless it set a clear standard of what a fair employer should do.

I find that the Employer was obliged to respond to the complaints made by their employees.

I find that they conducted a detailed investigation and gave the Worker a draft copy of the report.

I note that he refused to accept it and comment on it.

I find that that action in itself displays a worrying attitude.

I note that the Employer formed the view that he had not fully cooperated with the investigation. His refusal to accept the report and to comment on it only serves to add fuel to that fire and his action was ill judged.

I find that the matter was escalated to a disciplinary investigation and the outcome was that he was issued with a final written warning.

I note the concerns raised about the procedural fairness of the process.

I find that he was copied with the complaints, he was invited to a meeting to respond, he was given the right of representation, the right to defend himself and the right to comment on the draft report.

I note his concerns about findings based on the balance of probability.

I find that the civil standard of proof applies in such cases “the balance of probability” as distinct from the criminal standard of proof which is “beyond reasonable doubt”.

I find that it is appropriate to conclude on the balance of probability where there is not clear cut evidence. It is also acceptable to find that the evidence of one side or other would be more believable.

I note that the Labour Court regularly applies this position.

Investigators and in this case the Adjudication Officer is obliged to make findings and often have to rely upon the balance of probability.

I do not accept the argument that the incidents are stand alone and therefore cannot be deemed “repeated”.

If there are a number of incidents of alleged aggressive behaviour albeit on separate occasions with separate employees nevertheless it forms a repeating pattern of behaviour.

Therefore, I find that the Employer was correct to form the view that they were repeated behavioural issues.

I note the Worker accepted that reading out details of his case to colleagues was a breach of confidentiality.

I find that the Worker breached the confidence that he was told about in writing some 17 days after being advised not to do so.

Again, I find that this demonstrates his attitude towards the investigation.

I note that the Worker questioned the reliance on past behaviour on his personal file.

I find that the Employer relied upon records on his personal file regarding behavioural matters in the past.

I note that there were no live warnings on his file that could have been relied upon.

I find that the Employer was wrong to rely upon such records.

In find that these complaints should have been investigated in their own right only.

I find that this demonstrates procedural unfairness.

Overall I find that the Worker has now accepted that he behaved in an unacceptable manner.

I find his lack of co-operation with the investigation unacceptable.

I find his breach of confidentiality unacceptable.

I find the Employer’s reliance on previous records unacceptable.

I have reflected on the verbal and written submissions presented at the hearing.

Based on the above stated findings / conclusions I recommend that the final written warning issued should be reduced to that of written warning.

Appeal of Final Written Warning