Complainant

Respondent

Anonymised Parties

Administrator / Receptionist

Social Partnership

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-00023181-001

13/11/2018

On 17th May 2018 the Worker was called to a meeting with her manager and was spoken to about her behaviour at a workshop meeting on 14th May. She was given no notice or the purpose of that meeting. She was accused of having a negative attitude. She requested to go and get a colleague as a witness, but she was informed that if she left the office she would be suspended. She left and was told that she was suspended. She was shocked at this. She then consulted her union advisers. She then emailed her manager to advise that’s she was willing and available to meet her once she had direction from her union. Her manager then went to her office and asked if she was refusing to leave the building. She then left and went home shocked, traumatised, embarrassed humiliated and stressed by this unreasonable action by her manager. She went to her GP. The following day her manager confirmed in writing that she was suspended with pay for walking out of the office, refusing to discuss the matter, her attitude was dismissive challenging and unacceptable, her insubordination was deemed gross misconduct. A disciplinary meeting was held on 8th June, she was represented by her union official. It was chaired by her manager and she was accompanied by an HR Consultant. She was accused of a very angry and unacceptable response to her manager. The Worker responded and pointed out that she didn’t refuse to meet but wanted to have her union representative present. On 11th June her manager issued her with a written warning for her behaviour which was deemed unacceptable. The suspension was lifted. She appealed the sanction to the Chief Executive Officer and a meeting took place on 2nd July 2018. The sanction was upheld. She was offered an additional appeal which took place on 21st September 2018, which was chaired by the Chair of the Board of Directors. The appeal was not upheld and so it was referred to the Workplace Relations Commission.

On 14th May 2018 the Employer held a workshop to address how the organisation might change, leading to a better service for users. The manager observed the Worker at the workshop and deemed that she was negative in word and body language. The Worker questioned the need to change saying that things were fine as they were. This caused an atmosphere in the room. On 17th May her manager spoke to her about the workshop. Her manager had previously spoken to her about her resistance to minor change on 3rd May. The Worker was aggressive and unprofessional towards her then. The Worker left that meeting stating that she was going to contact her union and the Board of the Organisation. The objective of the meeting on 17th was be constructive with her and to be low key and supportive. Unfortunately, the Worker reacted very negatively and said that she would not listen to that and stood up to leave the room. Her behaviour was volatile and disruptive. It was pointed out that as manager she was fully entitled to speak to her and requested her to return to the meeting, but she refused. She was told that if she continued to refuse then she would have no alternative but to suspend her. She continued to refuse and so she was suspended. The Worker did not leave the building for some time and engaged with colleagues and then sent an e-mail that she would be willing to meet her manager after discussing this with her union. She then left the building. She was written to and it was confirmed that she was suspended on full pay and requested to attend a disciplinary hearing, which took place on 8th June 2018.   The manager and a HR Consultant represented the Employer and the Worker was represented by her union official. At the meeting the Worker denied any wrongdoing an accused her manager of lying, although later retracted it. She expressed no remorse and gave no apology for her behaviour and offered no mitigating factors for consideration. The Worker’s representative questioned the manager’s right to meet her at all. It was pointed out that the manager had a right and an obligation to manage her staff. It would be unworkable to have to bring in a third party every time a workplace issue had to be investigated. The Worker’s attitude remained hostile and despite a break to calm matters down she continued to state that she would not accept any ensuing disciplinary action. She was issued with a written warning on 11th June 2018. She was given the right of appeal to the Chief Executive Officer which she availed of and following an appeal hearing on 8th July the sanction was upheld. She was then offered a second right of appeal to the Chair of the Board of Directors which took place on 21st September 2018. The sanction was upheld. The Chair regretted the Workers unwillingness to engage with the process.

It is the Employer’s position that the Worker demonstrated a truculent attitude and this behaviour must be addressed. She fails to embrace ongoing change and does not like being brought to task by her manager. The written warning was warranted and she was given a two tier appeal process. It is management’s right to manage. Her insubordination was unacceptable and unworkable. She was treated fairly and in line with fair procedures.

I note the conflicting positions of both parties regarding what occurred at the meeting of 17th May regarding the workshop on 14th May.

I find that the manager had every right to speak to the Worker about her concerns about what may have occurred that day.

I find that it would be wholly impractical and a nonsense to have to have an independent third party investigate work place issues such as this, in the first instance.

I find that the Worker should have openly engaged with the manager. However, I note the manager’s position that she had behaved in this way at the previous meeting held on 3rd May.

I find that the Employer should have advised her in advance of the purpose of the meeting on 17th.

I find that the Worker had a right to be accompanied if she so chooses.

I note that the Employer states that the Worker got aggressive and volatile as had happened on 3rd May and she threatened to walk out.

I note that the Employer stated that the manager was prepared for this due to the Worker’s behaviour at the 3rd June meeting.

I note that the Worker rejects this version and stated that the Employer made false allegations against her. She sought representation and was refused.

I note the Employer stated that no such request for representation was made and so she was suspended for refusing to engage and for walking out.

On the balance of probability, I must conclude that I find the Employer’s position more plausible. It appears highly unlikely that the Employer would suspend an employee for wanting a colleague present at a hearing.

I find that the manager conducting the disciplinary hearing to be flawed and not fair procedures. The manager and the Worker were in direct conflict over what happened on 17th.

I find that the Employer should have had another member of management unconnected with the incident carryout an investigation into what occurred on 17th and determine if the Worker had a case to answer and then a disciplinary hearing should take place if that was the outcome.

I accept the Workers statement that this was a case of “nemo judex in causa sua”( no-one should be a judge in their own case).

On that basis I find that the issuing of the written warning was wrong.

On the balance of probability, I find that the Worker’s attitude and behaviour leaves a lot to be desired and that she has a case to answer. I fear that she may becoming unmanageable.

I find that there is a serious problem with this working relationship and it must be addressed by both sides.

I recommend that the written warning should be rescinded because it was issued by the manager who was directly involved in the dispute.

I recommend that the Worker with her union official should meet with the manger, the HR Consultant and the Chief Executive and address all the issues surrounding this incident and the working relationship. This should be conducted in a non-confrontational and open manner.

I recommend that the Worker should commit to respecting managements right to manage.

I recommend that the Worker should commit to respecting all legitimate instructions from management and any refusal should warrant the full rigours of the disciplinary procedures.

I recommend that the Worker commits to embracing and implementing change in the organisation.

I recommend that the Worker is open to having all the assertions that she is a negative influence and has traits of aggression examined in an open manner with a view to properly addressing them.

I recommend that the Employer commits to the application of fair procedure and withdraws the written warning.

I recommend that the Employer addresses all the concerns raised by the Worker regarding her working relationship with her manager.

I recommend that both parties draw up a plan of action to address the relationship issue in an open non-confrontational way.

I recommend that both parties build in a review mechanism.

I recommend that this process should commence with immediate effect.