Complainant

Respondent

Anonymised Parties

Production Inspector

A Multinational

Representatives

SIPTU

Ronan Daly Jermyn Solicitors

Act

Dispute Reference No.

Date of Receipt

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

CA-00016084-001

30/11/2017

The worker was issued a Final Written Warning and suspension without pay for one week for an alleged breach of procedure.

The worker commenced employment in 1989 and has a 29 years unblemished record.

On 19th June 2017 the worker was requested to attend a meeting in relation to an incident of 25th February 2017 whereby, it was claimed that the worker had failed to follow his procedure and as a result incorrect product had been shipped to a customer.

It was the worker’s claim that he had been advised that it was a serious issue but not advised of his right to representation at this meeting. An investigative meeting took place, followed by a report which resulted in a disciplinary meeting on 31st August 2017. The worker requested that his union representative attend this disciplinary meeting, owing to what the employer regarded as the seriousness of the allegations which is provided for in the company and union agreement but this was refused. The result of this disciplinary meeting was that the worker was given a Final Written Warning to be held on his record for 3 years albeit the policy only provided that final written warnings remain for one-year duration.

This warning was appealed and a request was made for the union representative to represent him at the appeal meeting but this was refused again. The result of the appeal on 10th November 2017 was that his Final Written Warning remained but was reduced to a period of 1 year and the worker was suspended for one week without pay.

It was detailed that another worker whose actions were also considered gross misconduct was afforded the right to a union official to represent him at his disciplinary meeting and it was unfair that the instant worker had not been afforded the same right.

Case law cited included LCR 20283 – Microsemi Ireland /A Worker, LCR 20635 –Kellysdal Ltd/Roman Tunyi,AD1431 Limerick City Council/SIPTU, 1484.

The employer disputed that there were any grounds to overturn the worker’s final written warning and his one-weeks suspension without pay.

It was detailed that the worker’s actions amounted to gross misconduct and that his actions undermined the employer’s reputation in the eyes of a strategic key business partner for which the shipment was the first of a newly requested product line.   Details around inspection were provided.

When the worker appealed the warning, the employer considered other sanctions, short of dismissal, and they took into consideration the worker’s previous good record and tenure.

It was detailed that it was within their right to refuse the worker union representation as the union representative was external to the company. The employer was willing and indeed did allow the shop steward to attend and the sanction taken was in line with precedent. While it was accepted that another worker was afforded the right to a union official, it was detailed that the lack of same for the said worker did not prejudice the worker and that it was the accepted standard at the time.

A very thorough and fair investigation, disciplinary and appeal meetings were conducted in line with the principles of natural justice and fair process including SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures.

Case law cited included Gustave Bigaignon v Powerteam Electrical Services Ltd [2012] 23 ELR 195 and Noritake (Ireland) Ltd v Kenna Employment Appeal; Tribunal UD88/1983

I note the employee’s previous 29 years unblemished record and that the employer’s current disciplinary policy, details that:

“employees …have the option to have a work colleague or shop steward representative….For the purpose of this procedure a representative is an employee’s colleague or an authorised trade union official representative but not any other person…unconnected with the organisation”

and that another worker was afforded the opportunity to have his trade union official attend his disciplinary meeting.

I also note that while some disciplinary action was justified, I recommend that owing to the unique circumstances, a written warning should be substituted for the final written warning effective from the date of the final written warning.   The worker should, therefore, be reimbursed for the loss of pay arising from his suspension without pay.  

For the avoidance of any doubt, I recommend that:

the only sanction which the worker should receive is that of a Written Warning owing to the unique circumstances of this case.

I recommend that:

the only sanction which the worker should receive is that of a Written Warning owing to the unique circumstances of this dispute.

Final written warning, suspension without pay