Complainant

Respondent

Anonymised Parties

General Assistant

Retail Supermarket

Representatives

John Callan                                            Mandate Trade Union

Niamh Ní Cheallaigh                               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-00042103-001

21/01/2021

The Complainant and the Employer are in dispute over the imposition of a final written warning. The Complainant has articulated this dispute by way of Workplace Relations Complaint Form dated the 21st of January 2021. The hearing of this dispute had to be done online in circumstances where the covid pandemic obliged all such hearings to be heard remotely. It is noted that the Complainant was available on audio only with no camera vision. The parties, including the Complainant, were happy to proceed despite this technical glitch.

I confirm that the Complainant is a worker within the meaning of the Acts. The Complainant was represented by a member of his Union. I was provided with a comprehensive written submission from the Union representative.

The Respondent was also represented by IBEC. Again, a comprehensive written submission was provided in advance of the hearing.

I have carefully considered all the evidence adduced in the course of this hearing. Both sets of submissions were opened to me and the representatives each respectively argued their own client’s position. The Complainant is a General Assistant in the Respondent and has worked with them for ten years. The complainant was subjected to a disciplinary process arising out of an allegation that the Complainant had turned into work on the morning of the 9th of July 2020 whilst apparently still under the influence of alcohol. The Complainant attended two Investigation meetings before a third meeting wherein it was decided to proceed with a Disciplinary process. The Complainant attended two further Disciplinary meetings – where the second one was requested by the Complainant’s representative as he was not satisfied that the Complainant had all the relevant witness statements to hand.

I understand that a third and final Disciplinary outcome meeting was held on the 9th of October 2020 at which time it was decided to issue the Complainant with a final written warning.

An Appeal was lodged against the sanction and the Appeal was conducted some seven weeks later with an outcome confirming the sanction notified to Complainant on the 22nd of December 2020.

It was put to me that a number of procedural issues rendered the Investigation and Disciplinary processes flawed and unfair when set against the Company’s own standards (as stated in their policy documents) and, indeed, the general principles set out in the Code of Practise on Grievance and Disciplinary Procedures (SI146 of 2000).

In particular, the complainant takes issue with the fact that witnesses were invited to make written statements and that neither he nor his representative were in a position to cross-examine said witnesses. The Complainant also takes issue with the fact that he did not receive all the witness statements (including ones which might be seen as being more favourable to the Complainant) until after they were demanded to be made available by his Union Representative at the first Disciplinary meeting (after three Investigative meetings). The Complainant believes that additional weight was given to Manager Statements over the cohort of employees who he would consider his colleagues. The Complainant takes issue with the delay in the Appeal hearing. Lastly, he also took issue with the Respondent operating off a Disciplinary policy dated 2018 where an updated version had been circulated in 2020 (I note that the Respondent’s written submission identifies the document in dispute as being the Drugs and Alcohol policy).

The Respondent is adamant that the sanction imposed was lenient given the findings made regarding the Complainant’s intoxication in the workplace. The Respondent states that it has acted in full compliance with the obligations set out in the Code of Practise on Grievance and Disciplinary Procedures (SI146 of 2000) and, indeed, the obligations set out in their own disciplinary  policy and drugs and alcohol policy. The Respondent refutes the allegation that there are procedural missteps and that even if there are, they are not sufficient so as to render the outcome to have been unfairly reached.

On balance, I find in favour of the Employer herein. A very serious allegation was made, and a very serious and comprehensive Investigative and Disciplinary process was embarked upon. I do not attach any merit to the argument that the Complainant should have been allowed cross examine witnesses as that rarely, if ever, would form part of an Investigative process. The Complainant can take issue with parts of Statements made, with the understanding that an Investigator would go back to clarify issues so raised. I am satisfied that the Complainant had all the witness statements provided to him and whilst there is conflict on when exactly the last few statements were provided, I am satisfied that the Complainant had had sight of all of them before any move was made to Discipline him. I reject the notion that the decision makers gave more weight to Management statements than to colleague statements. The Statements from those colleagues that were interviewed were at best non-committal, and therefore not useful either way.

The Respondent accepts that it operated off the 2018 Disciplinary policy in circumstances where the 2020 policy changes were administrative only and had no relevance to how the Disciplinary process should be operated. I can see no difficulty with this assertion once the 2018 policy was applied from start to finish.

The Respondent concedes that there was a delay in getting the appeal heard but that there was no malice or carelessness intended. It was difficult to get the relevant parties lined up. The Complainant was on night shift and the person it was proposed would hear the Appeal was on Annual Holidays at that time.

The Complainant has not, in my opinion, demonstrated any procedural or other unfairness, such that would displace the outcome of this process.

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

CA-00042103-001

Having already articulated my opinion on the merits of the within dispute, I am recommending that there be no change in the status quo. The final written waning stands.