ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00032082
Parties:
| Complainant | Respondent |
Anonymised Parties | Dog Warden | Animal Control Unit |
Representatives | Mr. Barnaba Dorda, SIPTU | Mr. Hugh Hegarty, Management Support Services (Ireland) Ltd |
Dispute:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00042647-001 | 23/02/2021 |
Date of Adjudication Hearing: 28/05/2021
Workplace Relations Commission Adjudication Officer: Brian Dolan
Procedure:
In accordance with 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.
Background:
The Worker commenced employment with the Employer on 1st July 2017. On the date of the hearing he was still employed by the Employer. On 23rd February 2021 the Worked referred a dispute within the meaning of the Industrial Relations Acts to the Commission. Herein he alleged that a disciplinary sanction imposed upon him was done so in breach of fair procedures and consequently any sanction imposed on him should be set aside. By response, the Employer submitted that all of the Worker’s rights were respected throughout the process and that the sanction was proportionate to the misconduct established by virtue of the same. In circumstances whereby the Respondent did not object to the same within the allotted timeframe, the matter proceeded to hearing. Said hearing was convened and finalised on 28th May 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. Both parties issued substantial written submission in advance of the hearing and expanded upon the same during the hearing. No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings. |
Summary of Worker’s Case:
The Worker is employed as a dog warden for the Employer. In August of 2019, he sought to meet with his line manager in respect of issues regarding on-call duties. On 9th August, the Worker was invited to his manager’s office, prior to the meeting he was unaware of the purpose of the same. As matters transpired, this meeting became quite heated with both sides raising their voices. Following this meeting, the Worker commenced a period of long-term sick leave. In or around April 2020 the Worker communicated his intention to return and enquired as to his outstanding annual leave. At that point the Worker was informed, for the first time, of a complaint made against him relating to the meeting in August 2019. On the Worker’s return from work in June 2020 he attended a meeting with a manger of the Employer and was informed of the full details of the complaint against him. In August 2020 the Worker attended a disciplinary meeting chaired by an external HR consultant. The consultant furnished the Worker with the complaint that was made against him and two further witness statements. In the course of this meeting the Complainant questioned the credibility of the primary witness statement, in particular taking issue the allegation that the complainee was unaware of his ongoing mental health issues. During the meeting the HR consultant stated that he would conduct a further investigation and speak with further witnesses. Following the meeting the Worker submitted an updated statement from one of the witnesses to the incident. This updated statement outlined that the Worker’s line manager was aware of mental health difficulties and sought to antagonise him at the meeting. On 8th September 2020 the HR Consultant issued his decision. Here he found that, on the balance of probabilities, the Worker behaved inappropriately during the meeting of the 9th August previous and issued him with a verbal warning. In doing so, it was apparent that the consultant did not take account of the latest statement from the witness and did not seek to re-interview witnesses as undertaken by him during the disciplinary meeting. The member availed of an internal appeal, this was duly dismissed and the sanction was upheld. By submission the Worker’s representative stated that the Worker was unaware for a lengthy period of time that a complaint had been made about him. They also took issue with the fact an investigation was conducted in the absence of the Worker and without his knowledge. Finally, they submitted that the Consultant failed to take notice of the most recent statement and failed to re-interview witnesses as undertaken during the process. In light of the accumulation of the foregoing points, the Worker’s representative submitted that the disciplinary procedure adopted was fundamentally unfair towards the Worker. Consequently, the Worker’s representative submitted that the sanction should be set aside and removed from the Worker’s file. |
Summary of Employer’s Case:
At the outset, the Employer submitted that the disciplinary sanction imposed on the Worker was warrened and proportionate in the circumstances. They further submitted that the disciplinary process adopted respected the Worker’s natural and contractual rights. The Worker commenced his employment with the Respondent on or about August 2017. On 22nd August 2019 the managing director of the Employer received a report from a member of staff regarding the conduct of the Worker during a meeting held on 9th August. They stated that the worker became extremely aggressive towards another member of staff and that he acted in an inappropriate manner. On 22nd September the member of staff that was the subject of the alleged aggressive behaviour raised a formal complaint in relation to the same incident. At this point, the Worker was on sick leave and it was not possible or practicable to further investigate the matter at that stage. The Worker returned from sick leave on 29th June 2020. On his return, the he was informed of the complaint that had been made against him. A written response was received on 12th July 2020. An investigation meeting was arranged for 29th July. During this meeting the Complainant denied the allegations, however he did admit to being in an emotional state during the meeting. Following this investigation meeting, the matter was referred for disciplinary hearing. As the managing director had chaired the investigation aspect of the process, an independent third party was engaged to chair the disciplinary aspect of the same. A disciplinary meeting was arranged for 29th August 2020. On 8th September 2020 the outcome of the meeting was conveyed to the Worker, here he was issued with a verbal warning. The Worker elected to appeal the sanction, a second HR consultant was engaged for this purpose. Following the appeal hearing, the disciplinary sanction was upheld. By submission, the Employer’s representative denied that the process was unfair in any way. They submitted that the delay between the initial incident was unavoidable as the Worker was on sick leave from the date of the incident. The HR consultation who conducted the initial disciplinary meeting denied that he failed re-interview witnesses as undertaken in the first meeting. He stated that he undertook to re-interview if such was necessary, however on a review of the documents he determined that such an action was unnecessary. Regarding the updated witness report, the HR consultant stated that he had sight of the same. In circumstances whereby he had received two conflicting reports from the witness, he elected to disregard that witness in his entirety and focus on the other evidence to hand. Finally, the HR consultant denied that he failed to consider all evidence available to him, and in particular evidence regarding the Worker’s mental health issues and their bearing on the incident in question. He stated that he did not have sight of any medical report outlining the extent of the same and could not rely on any other source in this regard. |
Findings and Conclusions:
The first point of dispute that arises in this matter concerns the passage of time between the incident giving rise to the disciplinary sanction and the invocation of the disciplinary process. In normal circumstance a delay of approximately one year between the incident and the sanction would be wholly unreasonable. However, in the present case, the Complainant commenced a period of sick leave directly after the incident in question. It was this period of sick leave that gave rise to the delay in investigating the incident. While such a passage of time is not ideal, the incident in question was of a serious nature, and the Employer simply could not ignore the complaint that arose from the same and continue as if nothing had happened. In this regard, the Employer has a duty both to the Worker, and the person that made the complaint. To simply ignore the complaint would be to breach their duty of care to the employee that made the complaint. I further note on his return to work, the Worker did not seem to have any issues of recollection regarding the incident and could provide a definite statement as to what occurred on that date. The second issue regards the HR Consultant’s alleged failure to re-interview witnesses as undertaken. In this regard I note that the consultant stated at the hearing that he would re-interview the witnesses if he deemed it so necessary. He stated that on review of the documentation he determined that such a step was unnecessary and issued his decision based on the information available. Having considered the totality of the evidence presented, I find that the failure to re-interview certain witnesses does not constitute a procedural flaw in the process. The rationale for the consultant’s decision in the first instance is clearly and unambiguously set out in the outcome letter issued. While the Worker clearly did not agree with the outcome, it is apparent that the consultant reached this conclusion after a careful determination of the factual evidence and the Worker’s own statement. This issue, and the others raised by the Worker during the hearing, were raised by him on appeal and considered by a second HR consultant engaged for this purpose. I note that this outcome letter contains a detailed examination of the witness statements provided and the Worker’s statements regarding his difficulties at the relevant time. Again, I find that this outcome contains a careful consideration of the issues raised by the Worker at the hearing. As such I cannot find that the Employer failed to consider the issues raised by the Worker. While the Worker was again clearly unhappy with the decision reached by the appeals officer, this determination was based on the evidence collected throughout the process and was not irrational or disproportionate. Having regard to the totality of the foregoing, I find that the process adopted by the Employer was procedurally sound. Contently I do not recommend in favour of the Worker. |
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA-00042647-001 – Dispute under the Industrial Relations Acts Having regard to the totality of the evidence presented I do not recommend in favour of the worker. |
Dated: 15/09/2021
Workplace Relations Commission Adjudication Officer: Brian Dolan
Key Words:
Delay, Sick leave, Disciplinary |