Complainant

Respondent

Anonymised Parties

A General Operative

An Engineering Company

Representatives

SIPTU

IBEC

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-00020698-001

23/07/2018

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

CA-00020698-002

23/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00020698-003

23/07/2018

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

CA-00020699-001

23/07/2018

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

CA-00020699-002

23/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00020699-003

23/07/2018

The complainant is employed by the Respondent as a General Operative since 2013. There are three issues for consideration under Adjudication Reference ADJ-00015981. The disputes submitted under Section 13 of the Industrial Relations Act, 1969 (CA-00020698-001 and CA-00020698-002) relate to a complaint of bullying and harassment which the complainant asserts has not yet been investigated and a disciplinary sanction which the complainant asserts is disproportionate and based on a procedurally unfair disciplinary process. The complaint (CA-00020698-003) relates to alleged penalisation in contravention of the provisions of the Safety, Health and Welfare at Work Act, 2005.

Background to the Issues

The complainant submitted a complaint of bullying and harassment against the HR Manager on 6th February 2018. The complainant also asserts that he was penalised by the HR Manager for having made the complaint of Bullying and Harassment against him. The alleged penalisation relates to an assertion that the complainant was not facilitated in attending hospital appointments on 7th February and 29th March 2018 with his partner who was pregnant and in relation to the respondent’s disciplinary process and sanctions following an incident in the workplace on 30th March 2018.

The complainant also failed to attend work on 29th March 2018 and at a return to work meeting on 30th March 2018, is alleged to have assaulted his Supervisor which prompted a disciplinary process resulting in a finding of gross misconduct, a four-week unpaid suspension and a requirement to apologise to the Supervisor in question.

The complainant has also submitted duplicate complaints on the same substantive issues which have been assigned the Complaint Application Numbers CA- 00020699-001, CA – 00020699-002 and CA- 00020699-003. As these complaints are duplicates, the substantive issues will be considered under CA-00020698-001, CA-00020698-002 and CA-00020698-003.

CA-00020698-001 - Industrial Relations Dispute – Disciplinary Sanction

The complainant stated that he was subjected to a flawed and unfair disciplinary process following an alleged assault on his supervisor on 30th March 2018. The complainant stated that he did not assault his supervisor and that the CCTV footage relied upon by the respondent supports this contention. The complainant submits that the respondent relied on the CCTV footage in reaching a finding of gross misconduct which is incorrect. The complainant contends that the disciplinary sanctions of a final written warning, and a four-week unpaid suspension are excessive and disproportionate. The complainant also stated that as he had not assaulted the supervisor, he should not have to apologise for his behaviour.

The complainant contends that as the process was unfair and flawed, he is seeking that the final written warning be rescinded, that he be reimbursed the value of the four-weeks unpaid suspension (€2,626.76) as well as being compensated for the manner in which the disciplinary process was handled by the respondent.

CA-00020698-002 - Industrial Relations Dispute – Bullying Complaint

The complainant stated that he submitted a complaint of bullying and harassment against the HR Manager on 6th February 2018 and that this complaint was not investigated in line with the respondent’s procedures.

The complainant is seeking that an agreed independent and objective investigator be appointed to investigate the original bullying complaint and any subsequent complaints that have been submitted by him.

CA-00020698-003 – Safety, Health and Welfare at Work Act, 2005 (Alleged Penalisation)

The complainant stated that he submitted a complaint of bullying and harassment against the HR Manager on 6th February 2018 and that he was penalised as a result. The complainant stated that penalisation occurred as a result of how the respondent carried out its disciplinary process and the imposition of a final written warning and a four-week unpaid suspension. The complainant also stated that he was penalised by not being facilitated in attending hospital appointments on several occasions with his partner who was pregnant.

The complainant’s representative cited the case of Paul O’Neill v Toni and Guy Blackrock [2010] ELR 21 wherein the Labour Court stated as follows:

“The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.

The complainant asserts that “but for” making the complaint on 6th February 2018, he would not have been treated in the manner complained of. The complainant is seeking compensation in relation to his complaint.

CA-00020698-001 - Industrial Relations Dispute – Disciplinary Sanction

The respondent stated that it carried out a fair and transparent disciplinary process following the complainant’s behaviour on 30th March 2018. The respondent stated that the complainant did not attend work on 29th March 2018 opting instead to attend a medical appointment with his partner without giving adequate notice to the employer. At a return to work meeting on 30th March 2018, the complainant behaved in such a way that required an investigation and disciplinary process. The respondent stated that it carried out a process in line with agreed procedures which resulted in a finding of gross misconduct. The complainant appealed the decision, but the finding of gross misconduct was upheld. The respondent stated that in line with the Company/Union Employee Agreement, the complainant could have been dismissed following the finding of gross misconduct. However, the respondent stated that it considered the Union’s request for leniency and, instead of dismissal, issued the complainant with a final written warning, a four-week unpaid suspension and a requirement to apologise to the Supervisor in question. The respondent stated that it applied the principles of fair procedures and natural justice to the complainant at all times throughout the process.

CA-00020698-002 - Industrial Relations Dispute – Bullying Complaint

The respondent contends that the complaint submitted in February 2018 was in the process of being dealt with. The respondent stated that there was email correspondence between the Investigating Manager and the Union in an effort to resolve matters informally and a suggestion that if the Union had no objections the Investigating Manager would proceed on that basis. The respondent stated that the Union sought the relevant policy but made no further contact in relation to the complaint. The respondent stated that it was therefore of the belief that the matter could be resolved informally. The respondent stated that when it became aware in May 2018 that the matter was not resolved, the complainant was on suspension following the incident of 30th March 2018. Accordingly, carrying out an investigation at that time would have been impossible and the respondent confirmed that the matter was referred to the WRC before the complainant returned to work following the suspension.  

CA-00020698-003 – Safety Health and Welfare at Work Act, 2005 (Alleged Penalisation)

The respondent stated that the complainant must prove that there is a causal connection between the lodging of proceedings and the alleged penalisation/adverse treatment.

The respondent quoted Paul O’Neill v Toni and Guy Blackrock HSC/09/05 wherein the Labour Court stated as follows:

“The commission of a protected act must be an operative cause in the sense that “but for” the claimant having committed the protected act he/she would not have suffered the detriment…..the claimant must establish on the balance of probabilities that he made complaints concerning {health and safety}. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those limbs of the test are satisfied, it is for the respondent to satisfy the Court, on credible evidence and to the normal civil standard that the complaint relied upon did not influence the claimant’s dismissal.”

The respondent stated that the disciplinary sanctions were as a direct result of the complainant’s behaviour on 30th March 2018 and were in no way connected or related to the bullying complaint that was made in February 2018.

CA-00020698-001 - Industrial Relations Dispute – Disciplinary Sanction

I note the complainant’s assertions that the final written warning was excessive as the respondent’s disciplinary process was unfair and flawed. The complainant also asserts that the CCTV footage does not show him assaulting his supervisor, yet the respondent relied heavily on the CCTV footage in reaching its finding of gross misconduct in relation to the complainant’s behaviour.

I have reviewed the CCTV footage in question and while it is unclear in relation to an “assault” it does show the complainant reaching for the supervisor and the HR Manager stepping in between the complainant and the Supervisor. I accept the respondent’s position that the Manager stepped in for fear that the complainant would have assaulted the supervisor had he not intervened.

Having reviewed the CCTV footage, and having considered the submissions of both parties, I am of the view that the respondent carried out a fair and thorough disciplinary process in relation to the incident of 30th March 2018. Interpreters were provided and paid for by the respondent, meetings were reconvened on a number of occasions due to the unavailability of the complainant’s union representative and the complainant was also facilitated with an appeal. In addition, the respondent considered the Union’s requests for leniency rather than dismissing the complainant which it was entitled to do having reached a finding of gross misconduct in relation to his behaviour.

In all of the circumstances of this complaint, I do not find that the disciplinary process was unfair or flawed. Accordingly, as the process was carried out in line with the respondent’s procedures, I do not find that there is merit in the complaint.

CA-00020698-002 - Industrial Relations Dispute – Bullying Complaint

By letter of 25th January 2018, the complainant first sought to change his shift pattern to attend a hospital appointment with his partner on 7th February 2018 and while an entire shift change was not possible, the complainant was given options in relation to his attendance at the first hospital appointment. It was the interaction with the HR Manager around this time that seems to have resulted in the first complaint of 6th February 2018. This complaint was not processed in line with internal grievance procedures. Some confusion existed between the respondent and the Union representative which led the respondent to believe that the matter had been resolved. When it was confirmed that the issues had not been resolved, the complainant was on paid suspension and subsequently on unpaid suspension in relation to the disciplinary process following the events of 30th March 2018. This dispute was referred to the Workplace Relations Commission (WRC) prior to the complainants return to work from the four-week unpaid suspension.

In those circumstances and as a result of confusion between the respondent and the union in relation to the status of the bullying complaint of February 2018 and the respondent’s inability to investigate the complaint while the complainant was on suspension, I am of the view that the complaint should be processed in line with internal procedures.

CA-00020698-003 – Safety Health and Welfare at Work Act, 2005 (Alleged Penalisation)

The complainant submits that he was penalised within the meaning of Section 27 of the Safety Health and Welfare at Work Act, 2005 as a result of the complaint he submitted against the HR Manager in February 2018.

It was confirmed by the respondent at the adjudication hearing that the HR Manager was not aware of the complaint that had been made against him in February 2018 as the Investigating Manager involved had intended to see if the matter could be resolved informally with the complainant. Correspondence from the respondent to the complainant in May 2018 confirmed that the HR Manager had not been notified of the complaint and was unaware of its existence. It follows that the HR Manager could not have penalised the complainant in relation to the hospital appointments in February and March 2018 due to the complaint having been made against him as he was not aware of the complaint at that time.

In relation to the disciplinary process and the complainant’s assertions that the flaws in the disciplinary process amounted to penalisation, I do not accept this contention. While there may have been some procedural flaws in the process, none resulted in penalisation to the complainant. The disciplinary process carried out in relation to the incident of 30th March 2018 resulted in a finding of gross misconduct. The disciplinary sanctions that resulted from that process were not in my view connected to the complaint of 6th February 2018 but were the result of a separate and standalone process initiated as a result of the complainant’s behaviour on 30th March 2018. Accordingly, I do not accept the complainant’s contention that “but for” making the complaint in February 2018, he would not have been penalised by the disciplinary process and the alleged lack of facilitation in attending the hospital appointments. Accordingly, I do not find that the complainant was penalised within the meaning of the Act.

CA-00020698-001 - Industrial Relations Dispute – Disciplinary Sanction

Recommendation:

Having considered the submissions of both parties and for the reasons stated, I do not recommend in favour of the complainant.

CA-00020698-002 - Industrial Relations Dispute – Bullying Complaint

Recommendation:

I recommend that the complaint of bullying and harassment that was submitted on 6th February 2018 be processed internally in line with the respondent’s Grievance and Disciplinary Procedures.

CA-00020698-003 – Safety Health and Welfare at Work Act, 2005 (Alleged Penalisation)

Decision:

Having considered the submissions of both parties and for the reasons stated, I declare that this complaint is not well founded.

Bullying and Harassment, Disciplinary Sanction, Penalisation