ADJ-00013360

Complainant

Respondent

Anonymised Parties

A Team Lead

A Pharmaceutical Company

Representatives

SIPTU

Ibec

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-00017593-001

22/02/2018

The Worker was employed as a Team Lead and was demoted to the position of General Operative and also issued with a written warning in March, 2017 for allegedly abusing his status by regularly taking a third unofficial break during working time. The Worker claims that he was wrongly and unfairly demoted which has resulted in financial loss and the loss of status and promotional prospects within the company. The Worker further contends that the disciplinary process followed by the Employer was fundamentally flawed and procedurally unfair.

The Employer contends that the Worker was found to have been taking unauthorised breaks over a sustained period. The Employer conducted a fair and measured investigation into this matter and following the completion of a disciplinary process the decision was taken to impose the sanction of demotion and a written warning on the Worker. This decision was upheld following an appeal. The Employer denies that the disciplinary process was in any way flawed or procedurally unfair.

The Worker commenced employment with the Employer on 16 January, 2000 and had an exemplary disciplinary record.

The Worker and two other colleagues (also Team Leads) were informed on 24 March, 2017 following a disciplinary process that they were being demoted from their existing positions of Team Lead to General Operative for allegedly abusing their status by regularly taking an unofficial third break during working time. The Worker and his two colleagues were also issued with a written warning which would remain on their files for five months. The Worker and his two colleagues appealed the Employer’s decision but their appeals were not upheld.

The Worker claims that this demotion has resulted in him suffering financial loss in the region of €111.00 per week and the loss of status and promotional prospects into the future. The Worker submits that the Employer’s approach to these allegations was grossly unfair from the outset and that the procedures applied throughout were fundamentally flawed and unfair.

The Worker has relied upon the following points in support of his case, namely:

·         No evidence of anyone raising an issue about Team Leads taking a third break was provided to the Worker, despite repeated requests for same. It is well established case law that an individual who is being disciplined is entitled to know the source of the allegations against them. Under the circumstances that prevailed in the present situation, the Employer had an absolute obligation to provide evidence to support its claims but the Employer failed to do so. The Employer also failed to respond to any of the points or arguments raised by the Worker in defence of the allegations.

·         The Worker does not accept the Employer’s contention that the issue surrounding the taking of unauthorised third breaks was raised with staff at a communications meeting prior to the disciplinary action which was taken against him. The Worker submits that even if it was there was an obligation on management to issue a general notice to alert employees of the appropriate breaks and that deviation from that could result in the disciplinary procedures being invoked. It was pointed out that the agreed procedures states “both sides agree that the primary aim of the disciplinary procedure is to help the employee achieve the necessary improvements”. However, the Worker contends that the Employer ignored the agreed procedures in this instance.

·         Giving an employee the benefit of advance notice of areas of dissatisfaction is what the agreed procedures provides for in keeping with the provisions of S.I. No. 146 of 2000. It is well established that the process is to be corrective rather than punitive. This was the approach taken by another Area Manager in his area when he gave five workers (including a Team Lead) advance warning that their breaks were being monitored prior to the initiation of any disciplinary action. This approach was not adopted by the Employer in the instant case and the Worker contends that a company cannot adopt one approach for one group of employees and a more favourable approach for another.

·         Covert monitoring is illegal and the Worker was not informed of how or who had carried out the monitoring of his breaks in this case.

·         The Employer clearly breached its Data Protection Policy and violated the Worker’s rights under Data protection legislation by using data collected from the “turnstiles” against him as part of the disciplinary process. The Data Protection Policy does not make any reference to the “turnstiles” and does not provide that the data collected can be used for the purpose of disciplinary action against an employee. Even though the persons hearing the appeal and the HR Manager in his capacity as Data Protection Officer were provided with compelling evidence to support the contention that they could not use the turnstile data for disciplinary purposes, they failed to set out their rationale for adhering to it. This is not credible and offends the principles of natural justice. The persons hearing the appeal failed to address any of the points raised and the documentary evidence submitted to them on behalf of the Worker regarding Data Protection legislation and case law.

·         The HR Manager had a direct conflict of interest by being involved in the approach adopted from the outset and being involved in deciding to demote the Worker and his two colleagues. As the Data Protection Officer for the company having already been involved in the whole process he could not be considered to be impartial, and as such the objection submitted by the Worker relating to his personal data was not dealt with impartially, depriving him of another of his rights, that of a fair and impartial hearing on the use of his personal data.

·         The Worker and his two colleagues were targeted to be made an example of. The Worker and his two colleagues could give examples of others who took the same breaks as they did but were unwilling to give names. It is well established case law that there must be consistent application of the disciplinary procedures but the Employer failed to adhere to such standards in the present situation.

·         The Employer breached the undertakings that were given by the HR Manager to the Shop Stewards regarding the purpose and use of members’ personal data when the “turnstiles” were introduced in 2014. Management does not have the right to unilaterally change an agreement that they were not party to. The HR Manager is on a solo run and has broken an agreement and significantly breached Data Protection legislation. In doing so, they then attempt to justify their breach with rationale that is not credible.

·         The disciplinary process was outrageously unfair, it was akin to a Kangaroo Court, and it was evident that the decision to demote the Worker and his two colleagues was taken from the outset. None of the issues that the Worker raised in his defence or the points raised by his representatives were responded to and the principles of natural justice were not applied to the disciplinary process.

·         The appeal was also a sham. There was a complete absence of neutral fact finding, it is evident that the findings were slanted to suit HR’s decision to demote the Worker and his two colleagues. The appeal hearing was allotted only 40 minutes to hear the appeals of the Worker and his two colleagues and subsequently had to be adjourned due to lack of time. The appeal hearing was not rescheduled for six weeks and then took another six weeks to issue a decision. In the outcome letter, the persons who heard the appeal contend that they spoke to Managers and the HR Manager, yet the Worker doesn’t know who they spoke to, what they spoke to them about or what was said about the Worker. The Worker was deprived of the right to know what was discussed and the right to respond.

·         The persons hearing the appeal did not speak to any of the five workers who were given advance notice by another Area Manager that their breaks were being monitored. The names of these five employees were divulged to the hearing officers and not only did they not speak to them, they again didn’t provide any rationale for not addressing the legitimate arguments made by the Worker.

·         The Employer cherry picked elements of the disciplinary procedures to support the company’s position and made meaningless sweeping statements such as “this is allowable” or “there is precedence for this” without anything to substantiate that position.

·         The Employer failed to respond to the arguments that to impose a written warning and demotion was a double penalty which was not provided for in the agreed procedures. The Employer failed to respond to the arguments that the procedure did not provide for demotion and as such cannot be a sanction. The Employer has imposed a sanction in perpetuity which again is not provided for in the agreed procedures.

·         The argument that the Worker had an exemplary work record was disregarded by the Employer.

In summary, the Worker submits that the disciplinary process was seriously flawed from start to finish and that the Employer targeted him and his two colleagues to demote them. They conducted a covert monitoring operation, which was in beach of its Data Protection Policy and Data Protection legislation, and deprived the Worker of all the principles of natural justice.

The Worker was employed as a Team Lead in the manufacturing process over a period of years. In December, 2016 during company/employee communication meetings the Employer was advised that a number of Team Leads were taking unauthorised breaks. The Employer submits that clearly that was information on which the company was required to act.

Company operations management monitored the use of breaks, and in follow up sought to validate observation evidence by reference to swipe card data. The data confirmed that the Worker and his two colleagues were indeed taking unauthorised breaks. The turnstile information in the period from January to February, 2017 showed daily occurrence. The company also examined the data to ensure that the Worker was not being victimised i.e. were there other Team Leads taking such breaks who had not come to the management’s attention? The data showed that there were not.

During February/March 2017 a disciplinary investigation was held and the outcome was demotion for the Worker and his two colleagues, to operator grade at the rate for the job, and a written warning to stay on file for five months.

The disciplinary process was followed, allowing representation, and the essence of the company decision is that an employee in a position of responsibility must be seen to comply with the rules that they are expecting their subordinates to observe.

In April, 2017, the Worker appealed the disciplinary sanction and the decision was to uphold the original decision of demotion and written warning.

The employees expressed dissatisfaction with the use by the company of information from the “swipe card” system to support the disciplinary investigation and decision. The Employer submits that the monitoring of employee access to and egress from the workplace to monitor employee attendance and compliance with break policies is not in breach of Data Protection legislation. The Worker did not deny the accuracy of the “clocking in/out” data during the disciplinary proceedings.

Further the practice of “clocking in/out” from the workplace was a practice which was in place prior to the installation of the turnstiles in 2014 and the Worker having been in employment since 2000 would have been familiar with the necessity to swipe in and out of the workplace premises. The personal data collected from the egress/access functionality in the turnstiles was used to:

·         Verify matters that had already been brought to the company’s attention through managerial observation, and

·         Ensure fairness and equity for the individuals concerned by establishing that they were not unfairly challenged vis-a-vis any malpractice by others.

The Employer submits that the use of the data was proportionate and not excessive in relation to the purpose for which it was collected. The decision of the company reached in the context of the disciplinary decision, was on the basis of the evidence of colleagues and managers of the Worker and the use of the access log was to validate and ensure no unfairness or false allegations were arising from the manual observations.

The Employer submits that all positions of accountability are accountable for adhering to standards in their own behaviour that are expected of their subordinates. The company investigated a report of unauthorised breaks in a fair and measured way. The sanction imposed was appropriate. The Employer submits that if the sanction were to be overturned it would suggest to employees generally that there is a double standard in the company, one rule for one group, and another group who can make their own rules with impunity.

It was not in dispute that the Worker was demoted from the position of Team Lead, which he had held for a number of years, and issued with a written warning following a disciplinary process relating to the alleged abuse of his status by regularly taking a third unofficial break.

The Worker contends that the disciplinary process in relation to this matter was totally lacking in fairness and that the sanction imposed was wholly excessive in the circumstances. The Employer denies that the disciplinary process was procedurally unfair and contends that the sanction was entirely appropriate given that the Worker was employed in a position of responsibility and must be seen to comply with the rules that his subordinates are expected to observe.

It is clear that the Employer’s initiation of an investigation and disciplinary procedure was in response to the alleged abuse by a number of Team Leads of their status by regularly taking an unauthorised third break. The Employer contends that management monitored the breaks taken by Team Leads during January/February, 2017 and in follow up sought to validate observation evidence by reference to the information obtained from the company’s electronic clock card system.

The Employer had a Disciplinary Procedure in place which conforms to the general principles and procedures enunciated in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000[1]. The Employer’s Disciplinary Procedure states that “At all stages the employee will be advised, in advance, of the circumstances of their infringement, what is required to rectify the situation and given the opportunity to respond”.

I note that the Worker was summoned to attend an investigation meeting on 2 March, 2017 in relation to this matter. However, I am satisfied that the Employer failed to adhere to its stated procedures and that the Worker was not provided with any detail, written or otherwise, in advance of the investigation meeting of the matter at issue or the allegation against him giving rise to the investigation. Neither was the Worker provided with any opportunity to rectify the alleged infringement prior to the imposition of a disciplinary sanction.

At the investigation meeting the Worker’s representative sought details from the Employer of all relevant information and evidence, including details of the monitoring operation that had been carried out by management in relation to the taking of breaks, which gave rise to the investigation. It is clear that all relevant information in relation to the monitoring operation, such as who had carried out the monitoring, how it was done and the nature of the information compiled, was not shared with the Worker during either the investigation or disciplinary meetings.

The Worker has also contended that the Employer was not entitled to use the data obtained from the electronic clocking system for the purpose of disciplinary action against him and that the use of same breached undertakings that were given by the company’s HR Manager to Shop Stewards regarding the purpose and use of personal data when the “turnstile” system was introduced in 2014. It is clear that the data from the clocking system was used for monitoring purposes without the prior knowledge or notification by the Employer to workers that such information could be used for the purpose of disciplinary action. The EAT has held in the case of Heffernan -v- Dunnes Stores[2] that it would be far more reasonable of an employer to notify employees of the concerns so that they correct their behaviour rather than covertly monitoring so that they can be caught out.

I have also noted that the Worker brought information to the attention of the Employer during the appeal process that another Manager had given advance notice to five other workers (including a Team Lead) that their breaks were being monitored prior to the initiation of any disciplinary proceedings against them. It is clear that the Employer failed to take this information into consideration during the appeal process or interview either the Manager or the five employees in relation to the matter. I am satisfied that the Employer was not in a position to refute the Worker’s contention that an inconsistent approach had been applied by management in relation to the issue of workers taking unauthorised breaks.

I find that the failure of the Employer to set out in writing to the Worker the detail of the allegations against him, the failure to share all relevant information relating to the monitoring operation which gave rise to the initial investigation, the failure to afford him the opportunity to rectify the infringement and the lack of consistency in relation to the manner in which other workers who were allegedly taking an unauthorised break were dealt with, are significant failures of the procedures followed during the disciplinary process in relation to this matter.

In the circumstances, I find that the manner in which the disciplinary process was conducted by the Employer was procedurally unfair. In light of these procedural flaws in the disciplinary process, I find that the disciplinary sanction relating to the demotion of the Worker cannot stand and should therefore be rescinded.

I have also taken cognisance of the fact that the Worker did not deny, either during the disciplinary process or when questioned at the oral hearing, that he had taken unauthorised breaks during the period in question. It is clear that the taking of unofficial third breaks was in breach of the Employer’s policy in relation to the taking of breaks during working time. In the circumstances, I find that the Worker through his behaviour contributed significantly to imposition of the disciplinary sanctions in relation to this matter and I have taken this into consideration in my recommendation to the parties.

I recommend that the Worker be re-engaged in the position that he held prior to his demotion on 24 March, 2017 (i.e. that of Team Lead) on the same terms and conditions as he previously held at that juncture. This re-engagement should take effect from the date of this recommendation and the Employer shall not be obliged to retrospectively pay the Worker for the loss of salary during the period from 24 March, 2017 to the date of his re-engagement in the position of Team Lead.

I also recommend that a written warning should be placed on the Worker’s file for a period of five months from the date of this recommendation in relation to the breach by him of the Employer’s policy in relation to the taking of an unofficial third break during working time.

Industrial Relations Act 1969 – Section 13 – Taking unauthorised breaks – Disciplinary Process – Demotion - Procedurally Unfair – Re-engagement to position