ADJ-00020037

Complainant

Respondent

Anonymised Parties

Cleaning Operative

Contract Cleaning Company

Representatives

BernadetteThorntonSIPTU

Aisling McDevitt & Liz MurphyIBEC, Eamonn Galavan, Sue Harris, Gerard McCarthy, Salman Saeed

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-00026509-001

25/02/2019

The Worker is employed as a Cleaning Operative. Following a disciplinary investigation she was issued with a final written warning and a demotion from Supervisor to Operative level. She has appealed the sanctions.

On 15^th December 2018 the Worker attended a Bar for a pre-Christmas function. The Employer left a tab behind the bar and paid for staff drinks. Two work colleagues made serious allegations against her by way of emails sent on 19^th December. She was accused of misbehaving and conduct unfit for a supervisor. Specifically, she was accused of being out of control, screaming, shouting and being very intoxicated and the other allegation was that she was on another substance. She considered it to be banter and if she caused offence she apologised. She was suspended from work on 21^st December 2018. The person investigating the allegations did not interview people who could have given an unbiased account of what took place. The Worker believes that her behaviour was exaggerated and taken out of context. This is her local bar and her family and friends are regulars. The Worker stated that she used her influence with the ‘Bouncer’ to deal with a tricky situation. The outcome of this investigation led to her being issued with a three-fold sanction. She was issued with a final written warning, demoted from supervisor to operative, with a reduction in pay from €12.45 to €10.80 per hour and removed from the site. The change of site means that she has to use public transport, which she didn’t have to do previously.

She is aggrieved that she lost her position of supervisor after a once -off incident that was out of character. She has lost the site where she had worked and built up a great relationship with people there and was within walking distance from her home. The sanction of final written warning was too severe. She cited the Shaw Labour Court case and CD/15/266 in support.

On 15^th December 2018 the staff attended a pre-Christmas function and the Employer arranged a fixed bar tab. They arranged that employees would receive tokens and they gave clear instructions how this was to operate and it was also confirmed in an e-mail. The Worker had the responsibility for the fair distribution of the tokens. On 19^th December two employees submitted complaints relating to the inappropriate conduct of the Worker. She was accused of giving disproportionate amounts of bar tokens to selective staff, using abusive an accusatory language about the Employer and about employees. She was accused of interfering with an employee’s clothing. She was accused of being intoxicated, on other substances and inviting an employee to partake in substance consumption. An investigation was conducted by the HR Manger and Recruitment Executive. Given the severity of the allegations the Worker was suspended from work on full pay on 21^st December 2019. She denied the allegations made against her. The two employees and four witnesses were interviewed as part of this investigation. The first investigation meeting took place on 8^th January 2019 and a second meeting took place on 14^th January 2019. She was informed of the allegations made against her, she was given the right to defend herself and she was given the right of representation. A number of the allegations were not upheld. A disciplinary hearing took place on 24^th January 2019, conducted by the Contracts Manager and the Worker was represented by the Union Official. The outcome was that she was issued with a final written warning, demoted from supervisor to operative and removed from the site that she was on. She was given the right of appeal which she took up and it was heard by the Operations Director. The sanctions were upheld.

It is the Employer’s position that the sanctions were fair and reasonable, supported by witness evidence, which demonstrated that the Worker acted in a manner that is wholly at odds with a person holding a supervisory position. They cited case law in support. She was afforded natural justice throughout the process. The sanctions were appropriate and should be upheld.

I find that the pre-Christmas function was work related and so it was appropriate that the Employer should have dealt with the matters that arose.

I note the allegations made against the Worker.

I note that the Employer carried out an investigation firstly and the matters were escalated to a disciplinary hearing.

I note that a number of the allegations were not upheld.

I note the outcome of the disciplinary investigation and the appeal.

I find that the Employer applied fair procedure and natural justice throughout the process.

I find that the Worker was made aware of the allegations made against her.

I find that she was given the right to defend herself.

I find that she was given the right to representation throughout.

On the balance of probability, I accept the Employer’s findings that the Worker’s actions were unacceptable, that she was intoxicated, loud, vulgar and her actions were inappropriate.

I am not convinced that her actions as found in the investigations constituted gross misconduct warranting dismissal, commuted to a final written warning, especially given the fact that this was a once -off incident.

However, I find her behaviour and actions wholly unacceptable for a person in a supervisory position.

I find that she would have had great difficulty in asserting her authority after such a public display of unacceptable behaviour in front of the employees that she was in charge of.

I recommend that the final written warning should be reduced to the status of written warning to last the duration of 12 months from date of original sanction.

I recommend that the demotion to general operative is appropriate together with the reduction in pay to that of general operative.

I recommend that should the Worker’s conduct, behaviour and attitude prove acceptable going forward, then she should be able to position herself in line for promotional opportunities in the future.

I recommend that the Employer should meet with the Worker and mentor/coach her towards achieving a promotion in the future.

Appeal of disciplinary sanctions