Complainant

Respondent

Anonymised Parties

A Lecturer

An Institute of Technology

Representatives

Teachers' Union of Ireland

Mr. Tom Mallon B.L. instructed by CC Solicitors

Act

Dispute Reference No.

Date of Receipt

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

CA-00031878-001

29/10/2019

The Worker is a lecturer with the Employer, an Institute of Technology. She claims that she was contacted by the HR Department and accused of being absent from her 4:15 class on Monday 11 March 2019. She claims that she was unable to get any information about the allegations or where they originated from. The Worker said that her Trade Union sought clarity on her behalf and maintained that it was invited to meet the Employer but declined until the identity of her accuser was made known.

The Worker claims that the Head of Department send an email under the formal section of the nationally agreed grievance procedure for the Institute of Technology sector to the Worker, claiming that she was setting out certain issues including a claim that the Worker did not attend lectures on 7 March 2019. The Worker said that she was on uncertified sick leave on this day.

The Worker said that her Trade Union wrote to the Employer on 25 March requesting the precise nature and detail of the alleged wrongdoings and sought documents in preparation of her disciplinary hearing. The Employer said that it did not have permission to forward the Student’s email citing the Worker’s alleged nonattendance at lectures.

The Employer sent a letter dated 1 May 2019 to the Worker inviting her to attend a disciplinary meeting on 9 May 2019.

The Worker’s Trade Union filed a stage 3 grievance on 8 May 2019 raising deficiencies with the formal disciplinary letters; perceived bias that the Head of the Department of Nursing (HDN) would chair any disciplinary meeting; failure by the Employer to provide the necessary information sought in advance of a scheduled hearing. The Worker said the Employer did not acknowledge the grievance until 6 June 2019.

The disciplinary meeting scheduled for 9 May was deferred on the Worker’s request. She said she did attend a Stage 3 grievance meeting on 18 June 2019 to learn that the Employer did not have the necessary members of management present to conduct the hearing. Following this the summer leave commenced on 21 June and she did not return to work until 2 September 2019. The grievance meeting was rescheduled for 1 October and although advised that a response would issue shortly with details of the student’s complaint, nothing was provided to her.

The Worker claims that since she filed her grievance, she has been penalised by being ignored and isolated in her workplace from her line manager, the HDN, and removed from the modules that she had developed and taught. All of which had an adverse impact on her health.

The Worker set out the provisions of the nationally agreed Grievance Procedure and claims that the Employer failed to take her grievance seriously. In particular, it failed to deal with the matter in a timely fashion and to reduce it from a serious grievance at stage 3 to a less serious grievance at stage 1.

The Worker said that the nationally agreed Grievance Procedures are intended to comply with the general principles of fairness and natural justice. However, the Employer has not followed the spirit of the general principles. It has not acted fairly, by failing to ensure all its managers, including the HDN, are conversant in the procedures; it failed to provide her with the documents detailing the allegations against her so to allow her to prepare her defence; the Employer continued to seek to hold disciplinary meetings notwithstanding the grievance raised by the Worker. At no time did the Employer indicate that the alleged misconduct warranted a formal disciplinary process.

The Worker claims that the Employer was well aware that the HDN was one in the same that accused the Worker of not being present and she still was the person who was tasked with the disciplinary letters.

The Employer is an Institute of Technology (IT). It claims that the IT has to be allowed to run its own business and when it comes across an incident that needs to be managed and investigated when possible poor performance or discipline is brought to its attention it needs to be able to address that in line with its policies, as was the case here.

The Employer said that the Worker is a lecturer of students who are required to attend a certain amount of face time lectures as part of their student programme; accordingly, they are instructed to use a “swipe card” each time they are in a lecture and this records their hours of face time learning.

The Employer was informed that the Worker was not present at her class on 11 March 2019 and sent an email to her to ask about her absence and whether she was on sick leave and would be in a position to take a class the following day. The Worker emailed back later that evening to say that she was present in her class and was upset that such an allegation was raised. The Employer said that it had noticed that an internal email sent to the Worker’s class had raised a question as to the Workers attendance in the class room. The Employer said that it is tasked and entitled to enquire into such possible anomalies.

The Employer set out the allegation of concern in an email to the Worker on 22 March 2019 and attached various attachments including the material that would be relied upon and the various codes of conduct and disciplinary procedures. The meeting was scheduled for 1 April 2019.

The Employer said from that day forward it has received letters and emails from the Worker’s side refusing to engage with it in the disciplinary process and turning the case into a formal grievance procedure.

The Employer said that it has attempted to meet and settle the grievance by undertaking an informal discipline process with the Head of the Department but that has been rejected. The Employer said that it needs to close out the disciplinary process. It had abided with fair procedures and natural justice throughout. It set out the allegations and invited the Worker to have her side heard. The Employer said the Worker is the only person who can present her case and finalise the process, but they are being blocked by her taking on an individual grievance.

The Employer asked if the Worker was willing to attend the informal disciplinary process rather than the formal process. However, this has not been acceptable to her. The Employer said that it acknowledged receipt of the grievance and was willing to engage in the hearing of the grievance. The Employer said that this has become much bigger issue than it needs to be, and it wants to meet with the Worker so that she can explain her side of the story so the matter can be resolved.

The Employer also denies that the Worker was removed from teaching certain modules of the course or isolated. The Employer said that this was delayed in the summer of 2019 due to holidays and there was no intention on its behalf to slow down the process. It said in the interest of all parties it wants to resolve the matter as soon as possible. The Employer also said that the Worker had sought a copy of the student’s email that raised concern about her attendance. It said it needed permission to seek and produce that email. It had not acquired that approval and therefore could not provide it to the Worker. Also, the allegation has been made by it, the Employer, and they were not considering it as a student complaint.

The Employer has asked me to review the informal process against the formal process and recommend that the case be dealt with via Section 51 the informal disciplinary process.

Having heard the submissions from both sides I am satisfied that the parties’ opportunity to resolve this and all related matters associated has reached a state of unfortunate paralysis.

The dispute before me is a stage 4 grievance brought by the Worker regarding the Employer’s alleged failing in advance of and during a disciplinary process against the same Worker.

To make a suitable recommendation here I am satisfied that I need to consider the root of this dispute.

I am satisfied that the Employer has an obligation and right to investigate any possible breach of procedures by any of its Worker.

I am satisfied that the Worker needs to know the case she has to meet and be given an opportunity to present her case, in line with the principles of natural justice and fair procedures. I note this is a requirement of the Employer’s Disciplinary procedure. Therefore, the Employer has a duty to inform the Worker of the case that she is being charged with and allow her to respond to that claim. I am satisfied that it has. However, the matter has now become side-tracked into a grievance procedure; how that grievance should be graded and who should hear the case.

This has got over complicated.

I note that the Employer has offered to meet with the Worker and try to dispose of the matter via an informal discipline process with the Head of the Department. I would agree that the informal route is a powerful tool that could possibly resolve all the matters, without more formal procedures being required. However, if they are required that should be addressed.

Section 13 of the Industrial Relations Act, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the Worker accepts that the root cause of this dispute needs to be addressed and that is the outstanding investigation into matters relating to and around 11 March 2019 and as set out in the Head of the Department of Nursing’s letter to the Worker on 22 March 2019.

I recommend that this is addressed via the informal route in advance of the new academic year in September 2020, should both parties be available. If not, immediately on the return of the Worker to work for the new academic year. Both the Worker and where possible the Head of the Department of Nursing should be in attendance to dispose of this matter informally.

I recommend ten days be set aside to informally engage and dispose of this matter. If this is not possible, the formal disciplinary route should be engaged soon after.

I recommend, should the formal disciplinary route need to be exercised, that the Employer identify and appoint a different management representative to complete the formal disciplinary process and not the Head of the Department of Nursing in this instance, due to her active involvement in the various strands of this matter heretofore.