Employee

Employer

Anonymised Parties

A General Operative

An Animal Feed Company

Representatives

Vivian Cullen SIPTU

Judy McNamara, IBEC

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-00034453-001

05/02/2020

The company is a supplier to the Irish animal feed industry, and it employs 41 people at four ports around Ireland. The employee is a general operative and he has worked with the company since April 1993. This is a dispute about a verbal warning issued to him on October 4th, 2019 which was on his file for six months, until April 4th, 2020.   Mr Cullen said that the employee wants the warning expunged. For the employer, Ms McNamara submitted that this dispute is moot, because the warning has expired and is no longer of any relevance.

Chronology Leading to the Issuing of the Verbal Warning

Having worked in the company for 27 years, the employee was never the subject of any disciplinary investigation concerning his performance or conduct. A new operations manager was appointed in May 2019.   This manager was the employee’s line manager and, that summer, he initiated a disciplinary investigation into the employee’s conduct. For convenience in this document, I will refer to the operations manager as “OM.”

A document submitted in evidence by SIPTU shows that, on July 24th, 2019, a few days before he went on holidays, OM requested the employee to attend a meeting on July 26th to discuss concerns about his conduct over the previous few weeks. He was advised that he could attend with a shop steward. He said that he did not attend the meeting because he was not given a written agenda. In his submission, Mr Cullen said that the employee spent the two weeks of his holidays “stressing and anticipating about the pending meeting.”

The meeting took place on Monday, August 12th, 2019 and the employee attended with his shop steward. A note of the meeting shows that OM commenced proceedings by telling the employee that he was “much respected by past and present management teams but in recent weeks there has been a series of incidents that are concerning and not creating a supportive and positive environment, something which we all should have as a common goal.” OM listed 16 incidents that occurred between April 29th and July 26th, 2019 and he asked the employee for his response to each one.   In his submission at the hearing of this dispute on December 11th, 2020, Mr Cullen summarised the incidents that were raised at the meeting:

Smoking in a non-designated area on three occasions and not wearing a safety helmet on one occasion.

Telling another employee not to carry out OM’s instructions regarding working in what was a restricted area. Also, telling an employee not to remove notices which OM had told him to remove, so that a new whiteboard could be fitted to a wall.

Challenging OM about a decision regarding overnight security.

Asking for written confirmation from OM regarding overtime and asking for confirmation from OM if he was required to work overtime due to a late boat.

Mimicking a foreign accent.

Handing OM a bag containing an animal carcass.

Failure to properly communicate with OM regarding a bin running empty and the fact that two men would be required to manage the situation.

Advising another manager that he was not authorised to open a gate into the site.

Parking his car in a place normally used by visitors and managers.

Leaving work due to illness.

Failure to attend a meeting when requested.

Following the meeting on August 12th, 2019, OM sent his notes to the employee and his representative and asked for their comments. On August 23rd, he received comments from the SIPTU branch secretary. On September 4th, 2019, OM recommended that the company’s disciplinary procedure would be initiated.

On September 20th, 2019, the employee attended a disciplinary meeting, chaired by a senior operations manager from the company’s Belfast depot. He was accompanied by the branch secretary and a shop steward. The issues for discussion at the meeting were summarised as follows:

1.              Alleged undermining of management decisions and actions.

2.              Alleged failure to follow reasonable management instructions.

3.              Alleged failure to follow company policy and procedure.

4.              Alleged failure to comply with site health and safety.

5.              Alleged inappropriate and unprofessional behaviour.

On September 30th, the employee was given a copy of the minutes of the disciplinary meeting for his comments. In a letter dated October 10th, 2019, the senior operations manager concluded that “the alleged offences outlined in the investigation report are upheld, and amount to misconduct under our disciplinary procedures.” He went on,

“While the allegations as outlined may amount to major misconduct under our procedures and could lead to a written or final written warning, my decision on this occasion is to issue a lesser sanction of a Verbal Warning. This warning will be disregarded for disciplinary purposes after a period of six months from the date of issue, i.e., after 4.4.20.”

On November 12th, 2019, the employee attended a meeting to appeal against the issuing of this warning. The appeal was heard by the HR manager and the employee was accompanied by his union branch secretary. Out of the 16 incidents considered at the initial investigation, the HR manager hearing the appeal withdrew the warning in respect of two incidents. The employee’s instruction to a colleague not to carry out work in a certain area was found to be not unreasonable, as he was not aware that the area had been declared as safe. The finding that he mimicked a foreign accent was withdrawn as there was only one person who witnessed this alleged incident.

As he remained dissatisfied with this outcome, on February 5th, 2020, he submitted this complaint to the WRC.

In the document which he provided in advance of the hearing of this dispute, Mr Cullen argued that the employee was treated unfairly by OM, who accused him of 16 “perceived transgressions” and who did not give him access to natural justice and fair procedures. Mr Cullen suggested that OM formulated the allegations and was witness, prosecutor and judge in the investigation. He said that OM was “highly prejudicial” and that the principle, “nemo judex in causa sua” applies, where OM was the judge in a case in which he had a personal interest. Mr Cullen said that he also breached another legal principle, that of “audi alteram partem,” meaning, “let the other side be heard.”

It is the employee’s contention that OM wilfully and deliberately orchestrated frivolous and vexatious allegations against him, and that there was no merit in these allegations. He argued that a flawed investigation resulted in a flawed outcome. Before he participated in the investigation, the employee was not given a written indication of the allegations that he faced.

On the basis that he had an unblemished record for 27 years, Mr Cullen said that the employer’s reaction falls outside what could be considered a reasonable or a measured response.

Mr Cullen referred to the High Court case of Frizelle v New Ross Credit Union Limited [1997] IEHC 137, and the principles that must be considered when investigating a complaint regarding an employee’s conduct: These can be summarised as follows:

1. The complaint must be a bona fide complaint unrelated to any other agenda of the complainant.

2. Where the complainant is a person or a body of intermediate authority, it should state the complaint, factually, clearly and fairly, without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed, and his version of events noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4. The outcome of an investigation should be based on the balance of probabilities flowing from the factual evidence and in light of the explanation offered.

5. The actual decision, as to what sanction should follow, should be a decision proportionate to the gravity of the complaint.

In summary, Mr Cullen submitted that the principles of natural justice must be unequivocally applied.

Mr Cullen queried OM’s statement that “I have personally witnessed and received reports of multiple examples of misconduct and inappropriate behaviour.” He objects to the holding of a disciplinary hearing that relied on OM’s investigation on August 12th, 2019.  

In conclusion, Mr Cullen submitted that the employee was treated unfairly as a result of “an autocratic style of management, an abuse of power, one manager’s perception and interpretation of reality, prevailing over a worker’s right to defend himself…”   He said that the employee’s explanations were not given an unbiased consideration and that the case against him was pre-determined and corrupted. He said that the employee is seeking financial compensation of €3,000 as a remedy and an acknowledgement that the company negated his rights.

Preliminary Issue

At the opening of her submission, Ms McNamara referred to the Labour Court decision in August 2018 concerning Tesco Ireland Limited and a Worker, LCR 21763. This was a dispute regarding a final written warning issued to the worker on June 1st, 2017 and which expired on May 30th, 2018. The matter was before the Labour Court on July 25th, 2018. The Court found as follows:

“The issue came before the Court on the 25th July 2018 at that point the final written warning had expired and therefore the issue was moot. The Court cannot expunge something that no longer exists.”

Given that the warning which is the subject of this hearing expired more than eight months ago, it is the employer’s position that it no longer exists and, in accordance with the finding of the Labour Court in LCR 21763, the issue is moot.

Substantive Issue

Ms McNamara provided details of the investigation and the disciplinary hearing that led to the employee being issued with a verbal warning. OM, who was the employee’s line manager joined the company in May 2019 and he had met the employee on a number of occasions in May, June and July, to discuss issues of concern. Before he went on holidays on July 26th, 2019, she said that OM met the employee and discussed the issues that had previously been discussed and told him that a meeting had been arranged for Monday, August 12th to address the issues. The 16 specific issues have been listed above under the “Background” heading.

Following the meeting on August 12th 2019, a disciplinary hearing was held on September 20th, following which the senior operations manager who chaired the meeting issued a verbal warning to the employee. The employee appealed the issuing of this warning and following a meeting with the HR manager on November 12th, the verbal warning was upheld, although it was withdrawn in relation to two incidents.

It is the employer’s case that the appeals process confirmed that the employee was fully aware of the issues that were included in the initial warning and that he had had an opportunity to make representations on each item raised in the earlier meetings.   The appeal took account of additional information submitted by the employee in relation to four of the 16 incidents and these matters were considered as if for the first time, with witnesses interviewed before a final outcome was decided. The HR manager who conducted the appeal was satisfied that there was no underlying vexatious agenda in respect of the employee.   She found that his good record had been considered and that the disciplinary process was used proportionately.

At the conclusion of her submission, Ms McNamara asked me to note a letter issued to the employee on December 13th, 2019, the same day as the outcome of the appeal was issued. In this letter, the HR manager issued some recommendations to the employee, so that both sides could move on to establish a better working relationship.   To avoid the escalation of issues, she advised the employee to give a full account and explanation in response to any allegation of misconduct. He was advised that a written agenda may not always be provided, and he was also advised to identify any witnesses who may be able to provide information regarding a matter under investigation. The HR manager also advised the employee to engage in an informal meeting with his line manager, OM. Finally, the HR manager assured the employee that he was a valued member of staff and that there was no vexatious or ill-willed agenda underlying the disciplinary process. The employee did not agree to engage in a conversation with his line manager.

I have considered the case law submitted by the employee in support of his contention that the decision to issue him with a verbal warning was unfair. I am mindful also of the employer’s contention that this matter is no longer relevant, because the verbal warning expired on April 4th, 2020. Taking my authority from the Labour Court in the Tesco Ireland case, cited by Ms McNamara, I find that the warning is no longer live and therefore, it should not be the subject of any further deliberation on my part.

For completeness however, I wish to make the following observations:

I find that the decision of the employee’s line manager, OM, to invite him to a meeting on July 26th, 2019 to discuss aspects of his conduct, was reasonable and in accordance with the disciplinary procedure agreed between the company and SIPTU. There was no requirement for the agenda for this meeting to be committed to writing, because the employee and OM met previously on May 22nd and June 28th to discuss some of the issues and he already knew what the meeting would be about. Also, OM intended to tell the employee what he wanted to discuss at the meeting itself and he would have had adequate time to consider a response before the formal meeting on August 12th. It is my view that if the employee had attended the meeting on July 26th, if he had listened to the concerns being raised by OM and if he had taken a more collaborative approach in response, the meeting of August 12th may not have been necessary and both sides could have moved on without escalation of the issues to a disciplinary hearing.

The disciplinary hearing was conducted by a manager who had little or no previous contact with the employee. The employee was represented by his union branch secretary who did not raise any concerns about unfairness or non-adherence to the principles of natural justice. The notes of the meeting show that the employee was evasive and defensive.

As set out in the employer’s submission, the seminal 1984 case at the Employment Appeals Tribunal of Looney and Company versus Looney, UD 843/1984 provides that it is not for me to establish the guilt or innocence of the of the employee, but to consider what a reasonable employer would do in similar circumstances.   I note the employee’s responses at the disciplinary meeting on September 20th and at the appeal meeting on November 12th. It is apparent that he had a fractious relationship with OM, and it is my view that this is reflected in the decision to issue the lowest form of sanction of a verbal warning. I find that this was not an unreasonable response of the employer in the circumstances that prevailed at that time.

I recommend that the employer takes no further action in respect of this dispute.

Grievance, verbal warning