ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00031546
Parties:
| Employee | Employer |
Anonymised Parties | General Operative | Food Processer |
Representatives | Barry Crushell, Crushell & Co Solicitors | Rosemary Mallon, BL instructed by Gerald O'Donnell Caulstown Solicitors |
Dispute:
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-00041941-001 | 12/01/2021 |
Date of Adjudication Hearing: 08/06/2021
Workplace Relations Commission Adjudication Officer: John Harraghy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, and Section 13 of the Industrial Relations Acts 1969 following 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.
The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
Background:
The employee is employed as a general operative with the employer who operates a food processing business. He commenced employment on 14/02/2017. In December 2020 the employee was suspended on full pay pending the outcome of an investigation in relation to serious breaches of health and safety and other company policies. As a result of this investigation a disciplinary process was established. The outcome of this process was that the employee was issued with a Final Written Warning which would remain active for a period of 24 months and also an unpaid suspension for a period of two weeks. The employee appealed this decision and that process upheld the sanctions. |
Summary of Employee’s Case:
The employee commenced employment as a general operative with the employer on 14/02/2020. A number of allegations were made against the employee by the employer in that it was alleged that he (a) urinated in a production area, (b) urinated while wearing some or part of the PPE which is required in a production area, (c) removing some of part of the PPE which is required while in a production area and (d) contaminating or attempting to contaminate food packaging products in the area. At all times the employee denied these allegations and protested his innocence. He was suspended on full pay pending the outcome of the investigation and any disciplinary process. The employee contends that the suspension was unwarranted as he had an unblemished record and it was not construed that he posed a risk to clients, colleagues or the employer. An operations manger carried out an investigation and this resulted in a disciplinary hearing which was held on 11/12/2020. The employee was shown CCTV which shows the employee in the vicinity of the area but at no stage does it show the employee engaging or undertaking in any of the acts complained of. There were no witnesses to substantiate any of the allegations. He was issued with a final written warning and a period of suspension. It was submitted on behalf of the employee that there was insufficient evidence to impose such a sanction. Given the very serious nature of the allegations attributed to him the employer should have exercised a greater degree of care in making such a determination. There was no evidence which would establish the guild of the employee. It was also submitted on behalf of the employee that the use of CCTV during a disciplinary process was inappropriate and the employer did not provide any evidence of any policies or procedures to the employee which would allow them to use CCTV. In that context the employee’s representative referred to ADJ-0008545 where the Adjudication Officer set out the Data Protection Commissioners finding that requires an employer to satisfy the fair obtaining principles of the Data Protection Act in relation to the use of CCTV and that those people whose images are captured on camera must be informed of the identity of the Data Controller and the purpose of obtaining the data. If the employer intends to use CCTV to identify disciplinary or other issues relating to staff, they must be informed of this before the cameras are used for such purposes. The outcome of this disciplinary process had a significant impact on the employee and the importance of one’s professional reputation should be considered by an employer. This necessitates strict compliance with the generally accepted concepts of due process and fair procedures. The employee’s representative referred to the case of Bord Gáis Eireann v A Worker (AD1377) where the Labour Court set out its remit in relation to disputed regarding internal investigations submitted under Section 13 of the Industrial Relations Act, 1969: “it is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.” It was submitted that the same criteria apply to the WRC. The employee had a serious sanction imposed on him and this had a serious impact on his good name given that there was no sufficient evidence to impose such a sanction. The complainant is a diligent worker, family man and has an unblemished performance and disciplinary record. He has continually protested his innocence throughout the process. The respondent’s representative also submitted that a further flaw in the process occurred when an expired warning was taken into account by the disciplinary decision maker. The employee is seeking a recommendation from the WRC that the sanction be expunged from his personnel file. |
Summary of Employer’s Case:
The employer provided two, CCTV clips to the hearing. The dates and times of these were noted as 1st and 4th December 2020. The camera was labelled “Dry Goods 2”. The employer submitted that a technical manager with responsibility for health and safety matters, was conducting a walk-about when she noticed urine in an area where dry goods were stored. There were two incidents within one week. She requested IT and another manager to review the CCTV from the area. A manager spoke to the employee who was seen on the CCTV. At the investigation meeting the employee confirmed that he entered the area to text his daughter who lived in Switzerland. He admitted to using a mobile phone in this area which is not allowed as outlined in the employee handbook. At the disciplinary hearing the employee provided an alternative reason for being in the area, namely he wanted to check some pallets as he didn’t trust a colleague. The respondent’s representative noted that the employee provided a different reason at the hearing for being in the area, i.e., he wanted to check the height of the pallets to assess them. The investigation, disciplinary and appeal processes were carried out in a thorough manner and the employee was offered the opportunity to have representation at all stages. All notes of meetings were not only provided to the employee but were also translated into his native language. In relation to the use of CCTV the employer’s representative noted that any complaints in relation to the use of CCTV should be made to the Data Protection Commissioner and pursued through the Circuit Court. In this case the employer has an express provision in the employee handbook in relation to the use of CCTV and it unequivocally states that CCTV footage may be used as evidence in disciplinary proceedings. There is a signed acknowledgement by the employee in relation to the receipt of this handbook. In relation to the employee’s contention that suspension was unwarranted it was submitted that given the circumstances where urine was discovered in the same location on two different days in an area where boxes and bags that could eventually come into direct contact with meat products was a very serious matter. The CCTV showed the employee in the area and he did not collect or remove any goods while there. The risk of contamination and the consequential reputational damage to the employer were such that this matter had to be investigated. The decision to suspend the employee pending the outcome of an investigation was appropriate in all the circumstances and particularly to prevent the risk of a reoccurrence. The respondent noted that suspension was consistent with the jurisprudence laid down by the High Court in the case of Bank of Ireland v Reilly [2005] IEHC 241 as decision to suspend the employee was made to prevent repetition of the conduct complained of and to protect the employer’s business and reputation. The employer’s representative submitted that the allegation of insufficient evidence and alleged reputational consequences on the employee could be addressed. The CCTV footage was carefully examined by the I.T. but it was also viewed by the disciplinary decision maker. The disciplinary decision maker viewed much more CCTV footage to ensure that no other person was in the area at that time. It is clear from the CCTV that the employee was in the area and did not have any valid reason to be there. It is also clear that he did not collect or pick anything up while in the area. The employee has given three different versions of why he was in that area. The decision that the employee was responsible for the incidents was taken on the balance of probability. In the context of a food production area the sanction applied was more than reasonable as this incident could have resulted in the dismissal of the employee. The employer rejected the employee’s assertion that it was inappropriate to take a previous disciplinary warning into account. No such warning was taken into account because no such warning was in existence. |
Findings and Conclusions:
Both the employee and employer submitted that it is not the function of an adjudication officer to determine if the final written warning was the correct sanction but to determine if the sanction came within the “band of reasonableness”. I must consider the procedural fairness or otherwise of the employer’s processes. The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2002 [2] sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. This Code of Practice emphasises that good practice entails a number of stages in the discipline and grievance process as follows: · That employee grievances are fairly examined and processed · That details of any allegations or complaints are put to the employee concerned · That the employee concerned is given the opportunity to respond fully to any such allegations or complaints · That the employee concerned in given to opportunity to avail of the right to be represented during the procedure · That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances. In considering this matter, I am satisfied that the employer had a well-established Grievance and Disciplinary Procedure in place which conforms to the general principles and procedures enunciated in the Code of Practice. I am also satisfied that the investigation was carried out by a person with the relevant expertise and experience. This was clearly a fact-finding exercise to determine whether or not the employee had a case to answer. The employee was advised of his right to representation but decided not to avail of this right. The employee was also furnished with copies of the notes of the meeting and these were most helpfully translated into his native language. The disciplinary hearing was conducted by a person with the relevant experience and independent of the investigation process. The employee was provided with all the documentation in advance of the hearing. He was given an opportunity to state his case and provide his explanation of his presence in the area. The employee was provided with a comprehensive explanation of the deliberations of the decision maker by way of letter dated 15/12/2020. He was also advised of his right to appeal and the process for doing so. The appeal hearing was also conducted by a person independent of the investigation and disciplinary processes. The employee was again afforded the opportunity to be represented and was accompanied by his wife on this occasion. I find that there have not been any procedural flaws identified in the investigation and disciplinary hearing which resulted in the sanctions being applied to the employee. I do find that the employee contributed to the situation he found himself in. In particular he provided three explanations in relation to his presence in the area and he also admitted the use of a mobile phone in the area. I find that the manner in which the employer conducted the investigation, disciplinary hearing and appeal hearing fully complied with the Code of Practice and the employers own Disciplinary and Grievance procedures, fair procedures and natural justice. |
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 employee accept that he has had many opportunities to outline his responses to the allegations and that he should now accept that, while he might disagree with the outcome, the employer was entitled to pursue the course of action which resulted in him receiving the Final Written Warning. I am also recommending that the employer formally reviews the length of the Final Written Warning after a period of 12 months from the date of issue has elapsed. Consideration should be given to reducing to 18 months as per employee handbook. The employee is to be advised of the outcome of this review in writing. |
Dated: 13th September 2021
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Final written warning. Appeal process. Fair procedures. Code of practice. |