Worker

Employer

Anonymised Parties

Chef

Health Care Provider

Representatives

SIPTU

IBEC

Act

Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00027868-001

18/04/2019

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00027868-002

18/04/2019

The Worker was disciplined with a written warning in November 2018, which was reduced to a verbal warning at the appeal stage. The Worker has submitted complaints in respect of both the sanction and also how the overall investigation and disciplinary process was handled by the Employer.

The Worker submits that he was subjected to unfair treatment by the Employer.

The Worker contends that the Employer acted on two complaints against the Worker in September 2017 where it was alleged that he had used “inappropriate behaviour, inappropriate comments and inappropriate language” as well as “threatening behaviour”.

The Worker submits that the Employer invoked the investigation process which concluded on 5th July 2018.

The Worker submits that the Employer took no action for the next 75 days (3 months) until 16th October 2018 when the Worker was invited to a disciplinary meeting subsequent to which he received a first written warning on 15th November 2018.

The Worker appealed the sanction and the overall process through the Employer’s grievance procedure which offered a two-stage appeals process. The Worker’s first appeal was unsuccessful. However, his second appeal was successful and the sanction was reduced to a verbal warning which was to stay on his file for six months from 15th November 2018 to 15th May 2019.

The Worker submits that the whole process, including the appeals stage, lasted for eighteen months.

It is the Worker’s position that the Employer, to a great extent, disregarded fair procedures and natural justice and acted without regard to logic and reasonableness.

The Worker asserts that he used the grievance mechanism to address his concerns, but to no avail.

The Worker is seeking to be compensated for the delay, stress and the Employer’s failure to act reasonably and fairly in carrying out the investigation, disciplinary and grievance processes.

The Employer submits that the Worker is seeking to appeal a disciplinary sanction which is now expired.   The Employer notes that the Worker’s disciplinary sanction has been expunged and removed from his file.

The Employers submits that in line with the Labour Court Recommendation in Tesco Ireland Ltd and A Worker LCR21862, the issue is now moot.

Without prejudice to the preliminary issued outlined above, the Employer submits as follows on the substance of the complaint:

·         The Employer acted fairly and reasonably in all of the circumstances.

·         In this regard, the Employer submits that the Worker received a disciplinary sanction following due process.

·         The Worker was afforded natural justice throughout the disciplinary process. In particular the Worker was aware at all times of the allegations against him.

·         The Worker was provided with an opportunity to respond to those allegations and to present his version of events.

·         The matter was investigated fully before a decision was made.

·         The Worker was represented throughout the process by his Trade Union Branch Official.

·         The assessment of the facts and the decision made took into account the representations made by the Worker and was an impartial determination

The Worker was provided with, and availed of, the opportunity to appeal. Indeed, the Worker was afforded two internal appeals. These appeals were heard by senior managers not previously involved and the Worker was afforded a fair hearing.

The fact that the warning was reduced on appeal is a testament to the fairness of the process.

The Employer rejects the Worker's assertion that the issuing of a sanction did not take into account all of the circumstances. It is clear that the Worker's input was sought and considered at every stage of the process.

The sanction issued to the Worker was fair and proportionate in the circumstances and is in any case expunged from his file. The Worker no longer has any live disciplinary sanctions on file.

I have carefully considered the submissions, both oral and written, made by the parties.

The Worker asserts that the disciplinary process followed by the Employer was flawed and took an excessive amount of time to conclude.   The Worker also contends that the sanction which was applied was disproportionate.

The Employer, on the other hand, maintains that the disciplinary process was fair and that the sanction was reasonable in the circumstances of this particular case.

I note that the Worker appealed the disciplinary sanction on two occasions on the grounds that: fair procedures and natural justice were not fully followed; all circumstances were not taken into account and the sanction was not warranted.

I am of the view that Worker’s appeal was dealt with comprehensively at both appeal hearings.

I find that the flaws identified by the Worker are not sufficient to render the process unsafe.   The fact that the original sanction of a first written warning was reduced to a verbal warning on appeal is persuasive in this regard.

CA-00027868-001 and CA-00027868-002

I do not recommend in favour of the Worker.

Appeal against a disciplinary sanction – complaint about the grievance and disciplinary process