ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00024810
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | A limited Company |
Representatives | Robert McNamara Mandate Trade Union | Dominika O'Sullivan The HR Suite |
Complaint(s):
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-00031628-001 | 11/10/2019 |
Date of Adjudication Hearing: 19/05/2021
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
The Worker seeks to have the decision to issue him with a first written warning overturned. |
Summary of Worker’s Case:
The Worker seeks an adjudication hearing in relation to a first written warning he was given following what he says was a fundamentally flawed and unfair investigation and disciplinary process. The Worker seeks, to have the written warning overturned, a declaration that the Respondent breached their own procedures and compensation for damage to his reputation. The issue arose when the Worker sent an email to his manager, Mr. A , wherein it is alleged that the wording used amounted to xenophobia and racism. The Worker was put on notice of the issue on the 19th of February 2019 when he was furnished with an invitation to attend at an investigation meeting. The meeting was to take place the following day at 9:30 a.m. The Worker alleges that the short notice was a breach of the company’s procedure, wherein 48 hours should be allowed prior to the holding of any meeting. The Worker notified the Respondent that he was unable to attend the meeting as he needed to arrange union representation and that the Respondent had given him insufficient time to arrange that. During that phone call the Worker was asked if Thursday, February 21st suited him. He stated that it did not because it was his day off. Later that evening the Worker received correspondence which was sent to his home by a Courier, setting out that the investigation meeting would take place on Friday the 22nd of February at 9:30 a.m. The Worker responded by requesting that the Respondent give him until Tuesday the 26th of February to allow him time to arrange representation. He also emailed the Respondent stating that he would not be available to attend the meeting until Tuesday the 26th of February. When he did not receive a reply from the Respondent he assumed that the Respondent had acceded to his request for a postponement. Later that day, the employee relations specialist arrived at the store in which the Worker worked and formally suspended him. On the 25th of February his trade union representative wrote to the Respondent in a final attempt to reschedule the investigation meeting. On the 4th of March 2019 the Worker received correspondence which set out the outcome of the investigation meeting. This came as a shock to him as he believed the meeting had been adjourned following his request to do so. The Worker wrote to the Respondent requesting that the process in relation to the investigation be re-commenced. The Respondent acceded to that request and a new investigation panel was appointed and then the new process commenced. In relation to the new investigation process and findings, the Worker stated that he was unaware that utterances made during a phone call with Mr. A, formed part of the investigation. He stated that he had not been put on notice of that and as a result did not have an opportunity to deal with that during the investigation. The Worker also took issue with the fact that he was not given a copy of the company’s policies and the companies disciplinary procedures. Following a disciplinary hearing which took place on the 29th of April, the Worker was given a final written warning. He appealed that decision and following the appeal hearing, the sanction was reduced to a first written warning. That warning has now expired and has been removed from the Workers file.
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Summary of Respondent’s Case:
The Respondent states that the complaint filed before the WRC is now moot, by virtue of the fact that the written warning has expired and has been removed from the Workers file. Without prejudice to the above, the Respondent states that at every stage of the process, the Worker was given an opportunity to be heard. When he objected to the first investigation findings the Respondent took note of that objection and agreed to re- commence the process. In that regard an entirely new investigation panel was appointed to ensure that there was no overlap between the 1st and 2nd investigation. The Worker was invited to the investigation meeting, was informed of his right to be represented and was given a copy of the company’s procedure. The Worker also has access to the Respondent’s policies as they are all contained in a file on his desktop. Furthermore, he was given a written copy of the terms of reference. He refused to sign them. He was informed of the allegations being made against him and was given an opportunity to respond to the email that he sent to Mr. A. All minutes taken and notes following interviews of the various witnesses were sent to the Worker. The Worker when asked to respond to the allegations, did notify the Respondent that he was waiving his right to respond. Furthermore, in the disciplinary meeting he was again asked if there is anything he would like to say in relation to the subject matter of the disciplinary process. He stated that he did not wish to reply. The Worker was given a right to appeal the findings of the disciplinary officer and he availed of that right. Following the hearing of the appeal, the sanction was reduced to a first written warning. The Worker is incorrect when he states in his submission that evidence in relation to words spoken during the phone call he had with Mr. A where taken into account, and where the subject matter of a further complaint. Mr. A was a witness in the matter and was interviewed in that capacity only. There were no further complaints made by Mr. A nor where the utterances made during the phone call with Mr. A, taken into account. The Worker was given every opportunity to make whatever submissions he wanted to make in relation to the matter, but he declined to do so. |
Findings and Conclusions:
I have carefully listened to the submissions made by both the Worker’s representative and the Respondent’s representative. I note that the Worker is seeking to have the written warning overturned, a declaration that the Respondent did not apply its own procedures to the process and compensation for damage to his reputation. The Worker made submissions in relation to what he says where the Respondent’s shortcomings in the application of their procedures during the first investigation process. If an entirely fresh investigation process had not been commenced, I would have been inclined to make a recommendation that the Respondent adhere to its own procedures in relation to notice. However, it isn’t relevant in the circumstances of this dispute. I am fully satisfied that the second investigation was carried out by a new and independent panel. In relation to that investigation, I am satisfied that the Worker was aware of the allegations being made against him, was given a copy of the disciplinary procedure, had access to the company policies, was given a copy of the investigation meeting notes, was afforded the right to be represented by his union representative, was given the opportunity to be heard at every part of the process and was given a right of appeal. Furthermore, I am satisfied that the Disciplinary Officer did not have a second complaint made by Mr A before him and did not take any of the utterances made during the phone call between the Worker and Mr. A into consideration when making the decision. I also note that the Worker acknowledged that the email was poorly worded and apologised for same. I can find no breach of the Respondent’s procedures, that would allow me grant any of the Worker’s opening requests. In all of the circumstances, I find the Worker’s request for compensation is not an appropriate recommendation to make in this matter in circumstances where the Worker accepts that he wrote the e-mail and accepts that he used a poor choice of words. Furthermore, I find that the Respondent’s process was more than fair, was transparent and allowed the Worker to defend the allegation fully. He, for reasons not made known to me, made the decision not to engage meaningfully or fully in the process, a process that was re-commenced on his request. I am recommending that the Worker attend for additional training on e-mail etiquette and anti-racism and dignity at work policies. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I am recommending that the Worker attend for additional training on e-mail etiquette and anti-racism / dignity at work policies. |
Dated: 9th July 2021
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Key Words:
Investigation and disciplinary procedure, notice, appeal, sanctions, training. |