Complainant

Respondent

Anonymised Parties

Housekeeper

Nursing Home

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-00031271-001

03/10/2019

The Complainant’s complaint is that while undergoing a disciplinary process, she was not afforded trade union representation, and that the Respondent failed to treat her appeal according to their own policies.

The Complainant is employed as a Housekeeper for in or around 23 years and has been a diligent employee with a clean record without any disciplinary issues. In June 2019, she received a text message from a Team Lead that she was to train another staff member “S” on cleaning in the main house. The Complainant responded by raising some concerns as she had to catch up with her own work, having returned from leave. She was then informed again by text that this staff member would have to be trained within 1 day as she was needed to cover the weekend work. The Complainant again raised her concerns and also raised concerns about S’s competency and hygiene standards. When the Complainant told S she was not in a position to train her, the Complainant was subjected to disciplinary process resulting in a verbal warning effective 16th July 2019 to remain on her file for 6 months, that her performance and conduct would be reviewed on a regular basis and that she had the right to appeal. The Complainant’s trade union wrote to the Respondent stating that the Complainant would be accompanied by her Trade Union representative as provided for under S.I. 146 / 2000 Industrial Relations Act 1990 as throughout the entire process the Complainant was not afforded the right to Trade Union representation.   On 21st August 2019 the Complainant attended the appeal hearing without her Trade Union Representative as the Respondent had denied her the right to be represented by SIPTU or any persons not employed directly by the Company. It is submitted that this is in breach of S.I. 146 /2000, Industrial Relations Act 1990.   The Complainant received the outcome of her appeal on 4th September 2019 which upheld the sanction of a verbal written warning issued on 16th July 2019. It is submitted that the Complainant should not have been requested to carry out the induction for the new housekeeping staff member as she is not a certified training instructor and therefore this is not part of her duties. It is further submitted that the sanction was disproportionate in line with the company’s own policies and procedures as Stage 1 i.e. Informal documented discussion and Pre-disciplinary. Her concerns that the hygiene standards achieved following a one day training would not be adequate were not listened to.   Finally, it is contended that the Respondent acted in breach of S.I. 146 /2000, Industrial Relations Act 1990 by denying the Complainant the right of Trade Union representation throughout the disciplinary process.

The Respondent provides nursing home, residential and supportive living care for the elderly and others with additional care needs. The Complainant is employed by the Respondent as part of the domestic staff team in the role of House Keeper / Cleaner. She was previously employed in this role on a part time basis by the Respondent’s predecessor since 1997.   On taking over the management of the nursing home, the Respondent updated procedures, delivered a considerable amount of training and provided all employees with an Employee Handbook. Staff were informed by email to familiarise themselves with the contents and that “any clause contained within the Employee Handbook supersedes those previously issued in the management services manual”. The Complainant acknowledged receipt of the Handbook and a copy of her signed acknowledgement acceptance and agreement to comply with it was received by the Respondent on 6th September 2018.   The Disciplinary procedure set out in the Handbook confirms that the details of any allegation /complaint will be put to the employee, and the employee will be given the opportunity to respond fully and that the employee shall be given the opportunity to “avail of the right to have a support person during the procedure” and the right to a fair and impartial determination of the issues and the right of appeal. Employee support person is defined as “a work colleague of the employee’s choice who will not be involved or potentially involved in the investigation but not any other person or persons unconnected with the Company. The employee’s support person may make an opening and closing statement however cannot answer on behalf of the employee”.     The disciplinary procedure is incremental in nature, with stage 1 being an informal documented discussion; stage 2 a formal verbal warning; stage 3 a first written warning; stage 4 a final written warning and stage 5 dismissal. The Employee Handbook also deals with attendance and punctuality and leave policies and procedures (details outlined). The facts which gave rise to the disciplinary process which led to a verbal warning are summarised as follows:

On 23rd June 2019 the Catering Supervisor Ms C advised the Complainant that a Carer S would be rostered with the Complainant the next day to get training in housekeeping.   This was with a view to S being able to work on her own the following Saturday. The Respondent had been facilitating the Complainant with weekends off to accommodate a personal request in relation to a family commitment.   The Complainant refused to take S for training. The Person In Charge (PIC) Mr K proceeded to conduct an informal meeting with the Complainant on 24th June 2019. The Complainant did not dispute that she had refused to induct S and refused to work with her when she arrived on shift. She was advised that S was upset and had lodged a complaint, however the Complainant did not see anything wrong in what she did. On 26th June the Complainant emailed Manager W complaining that she was being “spitefully victimised.. again I have been rostered to do weekends even though I have said I am not available”.   Manager W had an informal meeting with the Complainant on 3rd July 2019. The Complainant agreed to attend mediation with the Catering Supervisor. The Complainant was advised that weekends off could not be guaranteed, that the Complainant was expected to work some weekends and that PIC Mr K may wish to speak to her further regarding her refusal to train S. On 5th July 2019, the Complainant advised Assistant Manager Mr V that she was not available to work as rostered the next day.   She confirmed that there was no cover for the main building.   No prior request for a rostered day off or day of annual leave had been made. The Complainant did not attend work as rostered for the Saturday.                       The Complainant was invited to attend a disciplinary hearing on 12th July 2019, regarding her failure to follow a reasonable instruction (induction of S), absence from work and related matters.     Full details of the allegations and statements and records of previous informal meetings were provided to her and she was accompanied by a support person. The disciplinary hearing was held on 15th July 2019 and the outcome was a verbal warning. The Complainant exercised her right of appeal and sought to be accompanied by her Trade Union Representative “as per S.I. 146 Industrial Relations Act 1990”.   However, it is submitted that SI 146 provides for Trade Union representation where appropriate, but such representation is not required or implied into a contract of employment in all instances. The Complainant was perfectly free to be a member of a union and to take advice from her union, but the Respondent equally has a right not to engage with a trade union, preferring a different IR model of staff representation. It is submitted that the Code of Practice applies “unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues”. The outcome of the appeal was that the sanction (verbal warning) was considered fair. Relevant case law was submitted to support the Respondent’s arguments in relation to representation (McKelvey v Iarnrod Eireann, and Burns and Hartigan v Governor of Castlerea Prison) and the relevance of the contract of employment (Mooney v An Post). It is submitted that it is clear from the processes followed by the Respondent that they adhered to their own contractually agreed processes. It is submitted that it is equally clear that these processes were fair, and the Complainant was given ample opportunity to address and challenge the allegations and evidence against her.   There is nothing complicated or particularly contentious about the process – indeed the Complainant admits the facts giving rise to the sanction, she simply disagrees with her employer’s view that any of her agreed actions were inappropriate or wrong.                     It is submitted that this claim is not really about whether the employee had fair notice of, and an opportunity to challenge the allegations against her. It is also not about a deviation from contractual procedures, or the proportionality of sanction. It is submitted that this process has been hijacked to pursue an alternative agenda to undermine the Respondent’s policy which it is entitled to hold, not to negotiate with trade unions. The Respondent has set up an alternative IR model with elected staff representatives for each grade and area and is entitled to prefer this model. It is submitted that the Complainant has been treated leniently having regard to her undisputed behaviour and lack of remorse and in all of the circumstances her claim should be dismissed.

The Complainant was subjected to a disciplinary process for refusing to train in a staff member on cleaning duties and for not turning up for her shift the following weekend. It appears that the lack of cover for the weekend shift may have been because the person coming into the area was not trained by the Complainant. This was therefore an unfortunate outcome of the Complainant’s stance when she was asked to give the staff member training.   I find that the Complainant’s refusal to provide some basic on the job training to a fellow worker to have been unreasonable. She appears to have decided that her colleague was unsuitable. This, however is a management prerogative and the Complainant would have acted more reasonably if she undertook the training “under protest” as is a well-established action in such circumstances. The Complainant then found herself in difficulties again with her refusal to work the weekend shift.                                                                        In relation to the issue of representation, I am guided by the Labour Court in AD1269 Kellysdan v A Worker in which the Court decided:                                                                                                                “The Court finds that the grievance procedure in place provides for an employee to be accompanied by a fellow worker and accordingly does not comport with the provisions of S.I. 146 of 2000 as it does not provide for representation by a “colleague of the employee’s choice and a registered trade union. Accordingly the Court affirms LCR18364 and recommends that the grievance procedure be amended to have it comport with the terms of S.I. 146 of 2000”.

In this instant case I recommend that the Respondent take note of the Court’s decision and take action accordingly. I note that the verbal warning issued to the Complainant in this case has expired. I recommend that if the Complainant agrees that she will follow management’s instruction in the future, even under protest, that the verbal warning be expunged from the Complainant’s record.