Complainant

Respondent

Anonymised Parties

A Property Manager

A Property Management Company

Representatives

BarnabaDordaSIPTU

Jenny MartinKane Tuohy Solicitors

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-00022227-001

28/09/2018

The Complainant commenced employment with the Respondent, a property management company, in 2008.  He was employed as a Property Manager. He lodged a complaint with the WRC on 28^th September 2018.

The Complainant submitted a detailed written submission.

The Complainant submits that he was issued with a final written warning on 26^th July 2018.  The Complainant believes this sanction was not warranted or at least too severe, that the employer did not follow fair procedures and all mitigating circumstances were not considered. Prior to July 2018 the Complainant had a clear record.

The Complainant received a communication from his supervisor on 29^th March, in which she informed him that she had undertaken an investigation about a complaint she had received about the Complainant.

The Complainant submits that there was a lack of fair procedures; (i) the Supervisor who undertook the investigation of the complaints made by a third party formed an opinion during her investigation that there were six other alleged misconducts and decided a disciplinary hearing should be convened to deal with all the alleged misconducts. The Complainant submits that those other six misconducts should have been referred to another unconnected person to investigate.  (ii) The Complainant submits that the supervisor who carried out the investigation was also involved in the disciplinary process as a witness.  (iii) The Complainant was denied the right to review the evidence before the disciplinary hearing.  (iv) There was no investigation report.  (v) Some of the allegations made against the Complainant changed during the process. (vi) There was a duplication of allegations against the Complainant. (vii) That the complainant was disciplined for reasons other than those presented to him at the disciplinary hearing.  (viii) That there was a lack of clear and transparent policy to indicated exactly what was required of the Complainant.

The Complainant also submits that there was a (i) a lack of consistency in dealing with other alleged similar offences.  (ii) That other staff were not treated in the same way as the Complainant in similar circumstances.  (iii) That other external factors were considered when reaching the verdict of gross or serious misconduct.

In conclusion the Complainant submitted that he was not given access to fair procedures and natural justice and the sanction was too harsh.

The Respondent provided a detailed written submission.

The Respondent submits that an investigation commenced in March 2018 in relation to the management by the Complainant of a particular Management Company.  The Supervisor undertaking the investigation wrote to the Complainant on 29^th March to advise him of her investigation and to ask him a number of questions.  There were delays in getting answers due to the complainant looking for extensions to the timelines to facilitate the Complainant contacting his SIPTU representative.  The investigation meeting was also delayed o a number of times to facilitate the union.  The Supervisor completed her investigation on 13^th June.  She recommended that the matter should be referred to a disciplinary hearing.

A disciplinary hearing took place on 10^th July.  The Respondent submits that the Complainant did not deny the allegations against him but did out forward a number of mitigating circumstances.  The Chairperson found that despite the mitigating factors, the allegations upheld against the Complaint were very serious but in light of the mitigating factors, they did not come within the meaning of gross misconduct. On that basis, the Chairperson did not consider a sanction of dismissal.  As the offences were found to be very serious and sufficiently serious, the Chairperson considered moving immediately to stages three or four of the disciplinary procedure in accordance with the Respondent’s disciplinary policy and procedure.  The Chairperson concluded in all the circumstances that the most appropriate disciplinary sanction was stage 3 final written warning.  The warning to remain on the Complainant’s file for twelve months (i.e. 25^th July 2019).

An Appeal hearing took place on 21^st August 2018.  The appeal was dismissed.

The respondent submits that the eight allegations against the Complainant were upheld against the Complainant following an investigation and a thorough disciplinary hearing.  The Complainant was afforded all his rights during the process. The Complainant utilised his right of appeal.  The Respondent also took cognisance of the mitigating circumstances put forward by the Complainant.  In all the circumstances the Respondent submits that the Complainant’s sanction was fair and should not be altered.

I have considered this matter carefully.

Having reviewed the submissions and taking into account the oral evidence given at the hearing I am of the view that the sanction of a final written warning was too severe in the circumstances.  I have come to this conclusion because I am of the view that the initial investigation was flawed, that the exact requirements of the Complainant were uncertain, and his clear record was not given sufficient weight in the decision.

I recommend that the sanction be reduced to a Written Warning, in line with the Company’s policy.

Warning, Sanction, Investigation