Complainant

Respondent

Anonymised Parties

A Catering Supervisor

A Catering Company

Representatives

SIPTU

 Solicitors

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-00017814-001

07/03/2018

The complainant had been employed by the respondent as an assistant Manager, but following complaints made against her she was demoted, incurring financial loss

The complainant says that the company overreacted in imposing the sanction it did on the complainant.

She had held the position of Senior Manager on a salary of €39,780 and following the investigation of three complaints against her she was placed on a lower salary of €35,000 and transferred.

The complainant is critical of how the complaints were investigated and says that the evidence of bullying conduct was not well made out.

She was also denied the right to cross examine witnesses as provide for in the case of Lyons v Longford-Westmeath ETB [2017] IEHC 272.

The complainant says that the respondent did not consider mitigating factors or a lesser sanction. The sanction imposed is a breach of the complainant’s contract of employment.

This will be a continuing sanction against her and the accumulating impact is too severe.

The respondent initially undertook an investigation of complaints against the complainant in November 2017 related to her treatment of fellow employees and to the use of foul language.

In the course of the investigation sixteen employees were interviewed and they made a series of detailed complaints about the complainant’s behaviour.

They were in the nature of harassment and excessive criticism of employees by the complainant, use of abusive language, and a threat to limit one particular employee’s access to work.

The complainant was shown all the statements gathered in the course of the investigation and given the opportunity to comment on them.

The investigator concluded that her actions, specifically her use of derogatory terms and inappropriate language;

‘had clearly upset people, undermined their confidence and made people leave their jobs, it is clear that [her] actions and behaviour has (sic) undermined their right to dignity at work’

This led to disciplinary action at which she was accorded her full rights to representation and in due course a sanction was decided.

The company believed that the facts of the case warranted a finding of gross misconduct but issued a final written warning with a life of twelve months, transferred her on a reduced salary and required her to undertake a training programme.

The complainant’s appeal did not succeed and the earlier decision of the Disciplinary procedure was affirmed.

The respondent views the sanction as reasonable and the process which led to it was fair and says the complaint has no merit.

The process in this case was triggered by a complaint from a Head Chef. He appeared to be acting on behalf of a number of the company’s employees who were dissatisfied with the complainant’s treatment of them. On the same day these were being discussed with the Chef another senior employee also voiced complaints about how she had been treated by the complainant.

An investigation began.

The report of the investigation which runs to seven pages and appendices recounts the testimony of some sixteen witnesses.

The report is well written and structured and it includes the complainant’s responses. The conclusions on each of three headings of complaints are clearly set out in a measured and reasoned way.

I do not see flaws alleged by the complainant sufficient to render the ultimate outcome also flawed.

Likewise, the disciplinary process was carried out to a good standard and the complainant is mainly contesting the matter of the sanction.

The complainant acknowledged the constraints on an Adjudicator in a case like this; mirroring the position in Unfair Dismissals cases.

Those constraints are that an adjudicator will not substitute their opinion for that of the workplace decision maker unless there has been a breach of fair procedure or a sanction that is outside the range of reasonable responses ( see the cases of AIB V Purcell [2012] 23 ELR 189 and Looney v Looney UD 843/1984).

By reference to those criteria there is no basis for intervening with the sanction, which, to judge from the evidence at the hearing seems also to be measured and proportionate.

Nonetheless, it seems fair to offer some possibility of rehabilitation of the complainant to her previous position subject to her ability to demonstrate that she has learned from this experience and gained fresh insight into the standards the respondent expects her to extend to her co-workers.

She must understand that the conduct found to have occurred may not be repeated, especially in a supervisor or manager and demonstrate this to the respondent’s satisfaction.

The respondent made participation on a training programme a part of its sanction and I recommend below that a formal Performance Improvement Programme be put in place tailored to achieve the respondent’s need for the improvement it wishes to see, and to address the complainant’s deficits.

On satisfactory conclusion of this programme it would then be appropriate to review the demotion of the complainant and I recommend that review should take place in February 2019 to see whether she has met the respondent’s requirements for a return to her previous grade. If so, then she should be.

I do not uphold the complaint CA-00017814-001 but make the following recommendation which I commend to the parties.

I recommend that the respondent install a structured Performance Improvement Programme at the earliest opportunity and that it conduct a review of the complainant’s performance in February 2019 to establish whether she meets its requirements for a return to her previous grade. If she has then her demotions should come to an end and she should be restored to het previous grade as soon as the opportunity to do so presents itself.

Discipline, Dignity at Work