LCR21992

• This matter was referred to an Adjudication Officer for investigation and Recommendation. On 8 October 2018 the Adjudication Officer issued the following Recommendation:-
  
  • " I recommend that the only sanction which the worker should receive is that of a Written Warning owing to the unique circumstances of this dispute.."
  The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 15 November 2018 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

DECISION:

This case is an appeal by the Employer of decision ADJ-00012157 of an Adjudication Officer. The issue in dispute between the parties is the Employers decision following a disciplinary process to apply a final written warning and one week’s suspension without pay to the Worker.

Union’s case

The Worker had 29 years unblemished service with the Employer when an incident arose in 2017 which after investigation was moved into the disciplinary process. On foot of that process the Worker received a disciplinary sanction of a final written warning and a week’s suspension. It is not disputed that a significant incident occurred. It is the Worker’s case that he was not afforded fair procedure and that the Employer had failed to follow their own procedure. His Union Official highlighted the fact that he was only allowed to be represented by a colleague or an inhouse Union representative and that the initial sanction was a final written warning to last three years. The Union on behalf of the worker argued that the failure to allow a Union official to represent the Worker and a three-year final written warning were in breach of S.I 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures and the Employer’s own policies. The Worker appealed the decision and on appeal the sanction was amended to one-year final written warning and a week’s unpaid suspension. It is the Worker’s case this sanction was excessive considering his long service and unblemished record.

Employer’s case

The procedures that were followed were fair and detailed consideration was given to the appropriate sanction having regard to the seriousness of the incident that had occurred, the Worker’s tenure and service and representations from his representative. It is the Employer’s policy although not stated in their written policy only to allow in house Union representation except in exceptional circumstances. The Worker was made aware of the customer complaint. There then followed a detailed investigation where the Worker was afforded every opportunity to set out his position in relation to the customer complaint. An investigation report was produced recommending that the disciplinary procedure commence. The Worker was invited to a disciplinary hearing and provided with all relevant information. The outcome of the Disciplinary process was that he was found not to have followed procedures resulting in a breach of their quality control process. As this was a key part of his role the sanction was a final written warning for three years and a training element. On appeal this was reduced to a one- year final written warning and a week’s unpaid suspension. It is the Employers position that this sanction was fair in all the circumstances of this case.

The issue came before the Court on the 25^thApril 2019 at that point the final written warning had expired and therefore the issue was moot. The Employer confirmed to the Court that the warning had been removed from the Worker’s file. While there were some procedural issues with the process followed it could not be described as fundamentally flawed. However, having carefully considered the parties submissions both written and oral and noting the long service the Worker has with the employer the Court is of the view that the one weeks’ unpaid suspension should be removed, and the appropriate salary returned to the Worker. The decision of the Adjudication Officer is varied accordingly

The Court so decides.

Signed on behalf of the Labour Court



Louise O'Donnell
TH______________________
20 May 2019Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.