Complainant

Respondent

Anonymised Parties

An employee

A logistics and distribution company

Representatives

Barnaba Dorda,SIPTU

Conor O'Gorman IBEC

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-00020174-001

03/07/2018

It should be noted that the Complainant (as per complaint form) named his employer incorrectly. I have amended the Respondent’s name to that shown above. Both parties agreed with this amendment.

The Complainant has been an employee of the Respondent since 28/02/2000, he is employed as a Warehouse Operative.

The complaint relates to an appeal of being issued with a Verbal Warning on 07/02/2018. The lifespan of a verbal warning in the Respondent company is 6 months.

The Complainant has been working for the Respondent for almost 20 years. During this time, he has been a diligent hardworking employee, committed to his job and respectful to other colleagues. He had a clear file, during his overall service was not disciplined and has not been known for any inappropriate behaviour.

In mid-November 2017 the Respondent introduced a new policy in relation to using work gloves – new ones would only be issued to employees when the old ones were handed back in.

On the fifth week of implementation the Complainant was commencing his evening shift and approached the assembly office window to request new gloves. A number of his colleagues were doing the same and voicing their opinions, which were in the main negative, regarding this new policy. The clerk / administrator who was issuing the gloves at the other side of the assembly office window. There was a level of noise and some employees in order to properly communicate with the clerk were putting their heads into the window.

The Complainant explained to the clerk that he did not have the old gloves from the previous day and tried to explain this to the clerk, he had to raise his voice to be heard. T is alleged that the clerk’s attitude was dictatorial in tone and informed the Complainant that he could have kept them in his pocket. The Complainant then tried to explain that he did not have room for old gloves in his pocket. The Complainant made a request to see the manager.

Subsequently, it was alleged that Complainant’s tone was inappropriate and he was called to a meeting with the shift operations manager. The Complainant apologised to the clerk and informed her that it was not his intention to sound that way.

A few days later the Complainant was invited to participate in an investigation meeting at which four statements were produced. The Complainant was thought to have been irate and argumentative on the day in question. What was obvious from all statements was that there was more than the Complainant upset with the newly introduced system.

Complainant’s case.

1.       We are of the view that fair procedures and natural justice were not observed during the process, namely by:

·         The Complainant was not given clear and transparent allegations made against him.

·         We are not sure as to why an employee could be disciplined for being argumentative, polemical, contentious, especially if such a way of conversation lasted for 15 seconds. Does it mean that the Respondent’s employees are not allowed to verbally, in an assertive fashion, express their concerns?

·         The investigation was not thorough. None of the other employees exchanginggloves were interviewed as part of the process.

2.       Lack of consistency, it was noted in the investigation outcome that the administrative clerk’s behaviour was not appropriate.

3.       All mitigating circumstances were not taken into consideration:

·         The Complainant has an unblemished record and acting in a manner which is inappropriate would be out of character for him.

·         The Complainant raised his voice due to the noisy environment around him.

·         The Complainant should not have been expected to store old gloves in his pocket from the previous day – the policy had some flaws.

·         The Complainant only spoke to the clerk for a very short time and then requested to see the manager which is in line with company policy.

The Complainant also wishes to note that there were significant delays with the whole process. The Disciplinary Meeting took place on 7th February 2018 and he only received the outcome on 21st March 2018. The Appeal letter was presented within the permitted five days – the Appeal hearing took place one month later. He received the outcome on 21st May 2018, some five months after the date of the incident.

The Complainant was invited to an investigative meeting on 10/01/2018 for ‘Alleged Misconduct’ – inappropriate behaviour towards a colleague on 17th December 2017.

Throughout the investigation the Complainant denied the allegation. The investigation manager issued an investigation report finding that the Complainant demonstrated inappropriate behaviour.

The Complainant was invited to a disciplinary hearing by letter dated 5th February 2018. The Disciplinary meeting took place on 7th February 2018 with the Operations Shift Manager. At this meeting the Complainant confirmed that he had spoken in a loud voice because he was speaking through the assembly office window and that the employee on the other side of the window should not be there if she becomes upset by the Complainant speaking to her in a loud voice.

After consideration it was felt that the most appropriate sanction was to issue a verbal warning to the Complainant.

The Complainant appealed through the appeals process and the Appeals Officer upheld the decision to issue the verbal warning.

Company position.

The verbal warning that is the subject of the hearing expired on 6th August 2018 and is now without status.

The Labour Court has ruled on this matter in the case of Tesco Ireland v A Worker Decision No. LRC 21763. Here the Court held that when a warning is expired “the issue is moot. The Court cannot expunge something that does not exist”.

I have considered the presentations and arguments presented at the hearing.

In relation to the delays with the entire process I have to agree with the Complainant – the Respondent should take note and address this to avoid a re-occurrence.

It is impossible to ignore the Decision of the Labour Court in LRC 21763 (issued on 20/08/2018). Here the Court held that when a warning is expired “the issue is moot. The Court cannot expunge something that does not exist.

In making any Recommendation on this complaint I have no option but to accept the Decision of the Labour Court as outlined above. It is for this reason only that the complaint fails.

The Complaint fails for the reasons outlined above.

Industrial Relations; expired warnings.