Complainant

Respondent

Anonymised Parties

Customer care agent

Transport provider

Representatives

SIPTU

Ms Elaine Mettler, BL. HR representatives.

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-00027729-001

15/04/2019

The claimant has worked with the respondent since 1988.

The claimant is appealing a written warning issued by her employer on 2 January 2019. She maintains that the employer failed to follow fair procedures and failed to offer her natural justice.

The claimant commenced employment with the respondent in May 1998 and by dint of further study and work with the respondent, progressed to a team leader’s position.

On 21 July a dispute broke out between a customer and the claimant. The customer pushed her in the back. The relevant police authority was notified.

The claimant submitted a written complaint to her line manager, Ms. C, concerning the uninvited intervention of a (same grade) colleague, Colleague A, into the dispute between herself and the customer. Colleague A had not witnessed the initial actions of the customer. A counter complaint was submitted against the claimant by Colleague A who stated that the claimant overreacted to the customer, argued that a resolution should have been attempted before the police were notified, and that the claimant had told her, Colleague A, that she was going to “take her to the cleaners”.

On 22 July an issue arose between the claimant and a work colleague, B, who submitted a complaint against the claimant the following day, the 23 July.

A further complaint was submitted by a work colleague, C, and a passenger against the claimant on 23 July.

The claimant and her union representative attended an investigation meeting with her line manager to discuss the aforesaid complaints on the 26 July. The claimant stated that CCTV footage was available from the relevant police authority which could confirm that an assault on her had taken placed and that she had engaged in a professional manner with the customer. The respondent could have formally requested footage as she had requested but chose not to. The company had to hand a report from the relevant police authority confirming that a passenger had confirmed to the police authority that she had pushed the claimant in the back. The report confirmed that the claimant agreed to allow the passenger to board. The worker advised that the same passenger had spoken very rudely to her.

Following the investigation meeting on the 26 July, the claimant was advised to attend a disciplinary hearing on 19 December. The respondent issued a written warning to last on her file for twelve months for not meeting the standards of behaviour expected of an employee in relations to colleagues and a guest. The respondent considered her behaviour to amount to misconduct.

She appealed the sanction and was unsuccessful in her appeal.

The investigative team failed to allow the claimant the opportunity to cross examine the witness or to provide her with revised minutes.

They failed to provide the claimant with a copy of the disciplinary procedure prior to the investigative process.

She was not given sufficient time to review the minutes of the first investigative meeting and revise same.

The sanction was disproportionate in that a co- employee charged with the same matter remained unpunished.

The employer failed to consider the mitigating circumstances in that the worker was dealing with aggression and an assault by a customer.

Respondent

The respondent states that the warning was imposed after a thoroughgoing investigation, after strict adherence to the disciplinary policy and in accordance with fair procedures.

In relation to the grounds of the complainant’s appeal they state that they emailed the disciplinary policy to the complainant in advance of the disciplinary meeting. They attempted to send a hard copy, but the complainant failed to keep the respondent updated with her change of address.

They gave ample opportunity to the claimant to amend minutes of meetings.

The respondent provided evidence of these statements.

While some of the incidents leading to the sanction were disputed, the respondent was guided by the witness statements.

They did consider the arguments advanced by the claimant at the appeal stage but were struck by the fact that the claimant complainant failed to take any responsibility for her behaviour and laid all responsibility at the door of the people making the complaints about her.

There is no CCTV footage available of the incident.

The written warning was applied on the grounds of misconduct. The respondent concluded that the claimant had misconducted herself in that she fell below standards expected of her in her interactions with colleagues and a customer on 2 -3 days in July 2018.

The complainant has worked with the respondent since 1988 and the respondent confirmed at the hearing that it is it is her first offence.

I sought and was provided with the disciplinary procedure following the hearing.

The respondent’s disciplinary procedure at Par 1.6 states the respondent will

“Decide upon disciplinary action according to the merits of the case, including the employee’s record”.

Section 3.2 of the same procedure cites the grounds which could warrant disciplinary action and while I accept it does not claim to be an exhaustive list, it does not include the behaviours complained of or describe them as instances of misconduct.

Section 4.3 states in relation to poor performance on duty

“Supervisors are expected to advise the employee on the possible consequences of such conduct, provide appropriate advice and/or assistance towards remedying it so as to avoid the need for disciplinary action”

The respondent did not show how they activated this provision.

The evidence indicates that the claimant’s conduct was fractious towards colleagues, overheated, led to an escalation rather than the reverse, was over- rigid in relation to a customer, but I am minded by the fact that she is in the company since 1988, it is her first offence and the lesser sanction of a verbal warning was available to the respondent. For all of these reasons and bearing in mind the provisions of the disciplinary procedure, I recommend that the written warning is expunged.

Given the distressing nature of the experience for the claimant. I recommend that the respondent offer her the services of the EAP.

I recommend that mediation should be offered between the claimant and the colleagues making the complaints.

If not already implemented, I recommend that the respondents should provide training in the area of customer service as outlined in their own correspondence to the claimant.

I find there is some merit in the request to have the written warning expunged and I so recommend.

I recommend that the claimant is offered the services of the EAP.

I recommend that mediation is offered to the claimant and the colleagues making the complaints about her.

I recommend that the claimant is provided with training in how to handle customer service dilemmas.