LCR21807

• “Having considered the submissions of both parties, I recommend that a final written warning for a period of six months with effect from 1 June 2017 is a more appropriate sanction in this case. As the timeframe has already elapsed, the warning should be treated in the same manner as recommended in Labour Court Recommendation No: LCR21502 i.e that the expired warning will remain on file but will not be quoted/referenced in future”.

DECISION:

This case is an appeal by a Worker of the decision of an Adjudication Officer. The issue in dispute between the parties is the Employer's decision following a disciplinary process to apply a final written warning to the Worker.

Union’s case

The worker was involved in industrial action which had been sanctioned nationally by her Union albeit not at her own place of work. On her return to work she was subjected to a disciplinary process which cumulated in a final written warning. It is the Union's contention that she should not have been disciplined and that the disciplinary process was flawed. The Union drew the Court’s attention to page 16 of the Document titled “Managing Discipline Employee Relations Department 2012”. The sixth bullet point states “the disciplinary officer must not have been a witness to the complaint or have been the investigating officer”. It is the Union’s contention that in this case that process was not followed. The Union also dispute that a final written warning was an appropriate sanction and are seeking to have the warning expunged from her file.

Employer’s case

It is the Employer’s case that the Worker was on an unauthorised absence and was disciplined in line with its procedure. It is the Employer’s position that they were fully in compliance with their own procedures and they drew the Court’s attention to an undated page titled “Investigation Outcome Procedure” which appears to be an extract from a larger document. The third last bullet point states that “in cases of misconduct the Manager who conducted the investigation can continue with the disciplinary hearing. However, where you are in the final stages of a misconduct issue then there must be a separate investigation and disciplinary officer.” It is the Employer’s contention that they complied with this requirement.

The outcome in this case was a 12 months final written warning which issued on 1^stJune 2017 and in accordance with the Company policy expired on the 31^thMay 2018. The Employer does not remove warnings from Worker’s personnel file but they do accept that it cannot be relied on in the future under any circumstances.

Discussion

It is clear to the Court that the parties appear to have different versions of the same document and that going forward any ambiguities in relation to same should be cleared up.

The Company were questioned in relation to their procedures when a warning expired and they confirmed that it is not their policy to write to Employees to inform them that the warning has expired. In their view it would create operational difficulties if they were to do so particularly where there were a large number of cases involved. The Court notes that the agreed disciplinary procedure states that the warning will only remain on file for 12 months. There is an onus therefore on the Company to ensure that there is a system in place that ensures no ambiguity can arise around the status of the warning after the twelve months has expired.

Having considered the submissions of both parties the Court recommends that the final written warning be expunged from the Claimant’s personnel file. The decision of the Adjudication Officer is set aside.

The Court so decides.

Signed on behalf of the Labour Court



Louise O'Donnell
MK______________________
24 OctoberDeputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Mary Kehoe, Court Secretary.