Complainant

Respondent

Anonymised Parties

Team Leader

Company

Representatives

Self

Darragh Whelan IBEC

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-00033419-001

26/12/2019

The dispute is concerned with a performance related disciplinary sanction imposed on the complainant by the company by way of a verbal warning on 15 October 2019. The dispute was referred to the WRC on 26 December 2019. A hearing of the dispute first scheduled for March 19th, 2020 was deferred due to the restrictions associated with Covid-19. The hearing in August 2020 was conducted remotely as agreed by the parties with the WRC.

On August 21st, 2019,the Complainant attended a meeting with Company representatives to discuss her management of the time and attendance of employees. She sought a deferral of the meeting as she was not aware of the details of the issues which would be discussed with her and whereas she thought that there might be a discussion in relation to two members of her team, at the meeting she found that the company intended to discuss a third person. The meeting was rearranged for September 22nd. Following that meeting she received a verbal warning the basis of which was set out in a letter dated October 15th. She appealed the sanction and met with the site manager on October 22nd following which the sanction was upheld. The complainant was out sick In November on grounds of workplace stress. At the hearing she submitted that her absence was due directly to the imposition of the sanction and that she experienced a loss of income in sick pay and bonus payments in 2019 and 2020 in addition to medical expenses as a consequence.

On these grounds, the complainant contended that her situation was different than that which formed the basis of the Labour Court Recommendations referenced by the company in their submission. The basis of the dispute is the complainants contention that she had managed the employees concerned; there was no discussion with her about company concerns at earlier performance management meetings or through that process before the disciplinary process was used; the company was through her observation and experience, inconsistent in its approach to absence management both in the case of the performance of other team leaders and also her own timekeeping.

On behalf of the Company, IBEC raised a preliminary issue to the effect that, as verbal warning had expired after three months, the claim is moot. The basis of the IBEC submission is the recommendations of the Labour Court in LCR21862 and LCR21763. In both disputes the disciplinary sanctions had expired and the Court set aside earlier decisions by an adjudication officer stating ’The Court cannot expunge something that no longer exists’ and ’at that point the final written warning had expired and therefore the issue was moot. The Labour Court cannot expunge something that no longer exists.’ Based on the wording of LCR 21763 and the conclusion in LCR 21862, IBEC submitted ‘that this issue is now moot and that this claim should fail’.

On the substance of the dispute, the Company submitted that all of the benefits of the internal procedure and those of fair procedures required by S.I.146.2000 were followed. Advance notification of the purpose of the meetings were provided to the complainant save for the first one where it is accepted that an additional point was raised and for this reason that meeting was adjourned, and the complainant then received a month in which to prepare for the investigation hearing. The complainant is an experienced team leader and she knows her responsibilities in relation to time and attendance, she has the support of HR when required, including weekly meetings allowing that these did not take place each week. The Company contended there were several emails sent to her enquiring about excessive absences among her team. Accepting that the performance meeting the previous March did not include any concerns about her management of time and attendance, it is contended that the company can initiate the disciplinary procedure at any stage where this is deemed necessary. In relation to the three employees whose time and attendance was not managed, each of these failures to properly manage those employees had consequences either for the company or the individual, or both. Within the process, the complainant admitted to failing to apply the time and attendance procedures appropriately and failed to act on instruction. The form of the disciplinary sanction was the lowest available, a verbal warning. The appeal process was thorough, and all the facts were considered by the hearers.

Regarding the losses claimed at the hearing, the company questioned the claim that the absence in November was related to the internal procedure as the complainant was in work for a full week after the appeal decision. No claim was made prior to the hearing before the WRC related to any loss in 2020. There was some difference in the calculation of the losses.

The application of Section 13 of the Industrial Relations Act 1969 requires that an Adjudication Officer( a Right Commissioner at that time) investigate a trade dispute and unless that dispute is settled between the parties, that the AO issue a recommendation with a view to providing a basis for settling the dispute.

LCR 21763 and LCR21862 have been cited as precedents which it is suggested I must follow. LCR 21763 makes no recommendation and therefore cannot be accepted as a precedent. LCR21862 recommends that the parties accept that the matter was resolved as an industrial relations matter on a given date when the disciplinary warning expired. Based on that decision, the employer in this current dispute is suggesting that an adjudication officer has no role in addressing a trade dispute where a disciplinary sanction has expired. This proposition cannot be accepted as a generality. To do so would be to conclude that there is some qualification of a trade dispute which can be heard by the WRC, not defined in section 13 of the Industrial Relations Act,1969. It would mean that, where the organs of the State i.e. the WRC and the Labour Court cannot consider a trade dispute regarding a disciplinary sanction within the time limit of that sanction, there can be no trade dispute within the dispute resolution legislation established in 1969,and largely unchanged since that time save for the administration of that legislation. In other words that their dispute is time limited in such circumstances as a matter of course. I see no basis for such a conclusion within the legislation. Each trade dispute must be considered on its own merits, in its own context and as an Adjudication Officer I am obliged to consider what recommendation I can make to resolve that dispute.

It may of significance that the issues under consideration in the Decisions of the Court cited by IBEC were themselves concerned with the outcome of an industrial relations dispute and the wider relationship between the employer and the trade union in those cases were at issue. While presented as individual issues when the considerable detail of the adjudication officer’s recommendations under appeal in those cases is examined, it is possible to conclude that while brought by individuals, those disputes were part of a collective and difficult dispute.

In summary, my role is to apply the terms of the Industrial Relations Act,1969,as amended, to the dispute before me and to make the recommendation which I consider appropriate to the facts and positions presented by the parties with a view to resolving the current dispute.

On the substance of the case, there is a claim of a loss of bonus payments one of which occurred after the warning had expired. Furthermore, she claims that she was at a loss financially because of sick leave which she maintains followed from the decision of the appeal process. From the hearing of the case , while the disciplinary sanction has expired, it is clear that the complainant remains aggrieved at her treatment which she contends include: a failure to use the correct process at the time i.e. the performance improvement system; alleged procedural flaws in the manner in which her case was processed and also a claim of inconsistency in the application of the same policies as were cited against her. Her sense of grievance and unfairness is ongoing. There remains a grievance the basis of which forms a dispute between the employer and employee.

Having considered the detailed submissions made by the parties at the hearing and the conditions of employment of the complainant together with the issues which led to her being disciplined, I conclude that it would have been better if the concerns of the employer regarding her supervision of time and attendance were flagged to her before they became matters of disciplinary sanction. However, in general, having regard to the consequences for the employer and potentially for some individuals, the issues raised were serious, and the performance of the complainant was inadequate. Furthermore, the disciplinary sanction had the desired effect in that there was no reoccurrence of the issues and whatever doubt the complainant had about the obligations she has to fully perform in the supervision of members of her team and to flag potential problems to more senior managers as well as taking heed of related emails sent to her-she is under no doubt since she was fairly lightly disciplined. In summary a reasonable person would conclude that a low-level disciplinary sanction was merited to address a matter of considerable and repeated underperformance.

There is nothing of significance in the manner in which the procedures were applied. When the complainant objected to the lack of prior notice of the issues raised with her at the first meeting, her concerns were taken on board and she was given plenty of time to prepare for the rearranged hearing.

Where a reasonable person could see that the complainant would feel a legitimate sense of grievance is in what she saw and indeed experienced as inconsistency, even in her own case, where poor time and attendance was neglected or simply ignored. She was in effect led by bad example. These comparisons and the responses of managers when she raised them appear to form a significant part of the complainant’s sense of grievance. This appears to have led in some part to her going out sick for a month and she has suffered financial losses as a consequence. For their part, her employer appears to doubt the relationship between her absence in November 2019 for a month on stress leave and the events which led to this trade dispute. At the same time, when they received medical certificates citing workplace stress, they exercised no duty of care to her; they neither inquired as to the reason for her stress nor sought an independent medical opinion. For these reasons and in order to try to resolve this dispute, it is recommended that the matter be settled by the complainant accepting that her dispute has now been fully and independently heard, and should the employer restore fifty percent of her loss of bonus in June 2020 as a gesture of good will, that she will regard the dispute as settled and both parties will then regard the matter as closed.

Based on the conclusions set out above, I recommend that the employer agree to restore fifty per cent of the payment lost by the complainant in June 2020 as a gesture of good will and, in return for such an agreement that the complainant confirm in writing to HR that on this basis, she now regards her dispute with the employer settled and the matters which led to this dispute closed.

Dispute-appeal of disciplinary sanction