Worker

Employer

Anonymised Parties

Clerical Officer

Credit Union

Representatives

Mr. Conor Hannaway, SHRC Limited

Ms. Helena Broderick, CollierBroderick Management Consultants

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-00032566-001

28/11/2019

The Worker is engaged with the Employer as a clerical officer. He is a full-time, permanent member of staff with over ten years’ service.

On 28th November 2019, the Worker referred a dispute within the meaning of the Industrial Relations Acts with the Commission. In circumstances whereby no objection was received, the matter proceeded to hearing. Hearings in relation to this matter were convened for 7th April & 27th October 2021. These 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.

In his complaint form, and subsequent submissions, the Worker alleged that the Employer had reneged on an agreement to finalise a disciplinary policy following the successful completion of a three month “trial period”. By response, the Employer submitted that this trial period was interrupted by external events, and should be extended.

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

The Worker is clerical officer of over ten years standing. On 27th May 2019, the Worker received an invite to disciplinary meeting that could, potentially, result in his dismissal. When the Worker’s representative challenged the process, it was confirmed that the matter was not being considered as gross misconduct, and the Worker’s employment was not at risk.  By further correspondence, dated 7th June, the Employer confirmed that the forthcoming meeting was in fact an investigation meeting and not a disciplinary meeting as previously advised.

The investigation meeting was convened for 25th June 2019. In the course of the meeting, the Worker and his representative were informed that they were in fact attending a “problem solving” meeting. Towards the end of a two-hour meeting, a number of points of agreement were reached. Folllowing from agreement on those points, it was agreed that the investigation would be suspended for a three-month trial period.  Notwithstanding the same, on 3rd September, the Worker received correspondence stating that as the Worker’s manager had been pre-occupied with other matters since the end of May, a new trial period would be put into place for a period of six months. The Worker submitted that this further trial period represented a further sanction and did not represent the agreement reached between the parties.

By submission, the Worker also alleged that the investigation meeting was invalid as the Staff Relations Committee, which was charged with processing such matters was acting ultra vires. The Worker’s representative further submitted that the Employer’s failure to agree terms of reference in advance of the meeting represented a fatal flaw in the process.

In conclusion, the Worker’s representative requested that the investigation process be set aside and that the Worker received a payment of compensation for the distress caused.   

By response, the Employer submitted that the investigation procedure was conducted in line with all relevant codes of practice, and that a further six-month trial period was a reasonable outcome in the circumstances.

The Employer submitted that the Worker had a history of bringing matters to the attention of the Board that could, and should, have been resolved by the CEO. On 27th May 2019, the Worker was invited to a meeting in line with the disciplinary procedure in respect of eleven separate allegations. On foot of a challenge to the process brought by the Worker’s representative, it was confirmed that this meeting was in fact an investigation meeting and not a disciplinary meeting.  It was denied that this meeting was described as a “problem solving” meeting, as submitted by the Worker. During the meeting each of the allegations were put to the Worker and his response was recorded. Following a recess, the Worker accepted that he was willing to take direction from the CEO and expressed a willingness to work collaboratively going forward. On the basis of the same, and with a view to improving relations within the branch, it was agreed that there would be a three month pause in the investigation to allow the Worker time to demonstrate his ability to work and communicate constructively with his manager.

The following day, 26th June 2019, the branch suffered a third-party breach of their computer systems. This caused several weeks of intensive work and a large volume of work for the CEO personally. On 3rd September the Employer wrote to the Worker stating that an extension would be required to the three-month pause. On 16th September 2019, the Worker’s representative stated that the matter would be refereed as a trade dispute in the present manner.

By submission, the Employer’s representative submitted that the procedure adopted in investigating the allegations is fair and in line with all codes of practice. They further submitted that the pause to the investigation process was a reasonable outcome and the further three-month extension was also reasonable, given the exceptional circumstances that gave rise to the same. By further submission, the Employer submitted the process, as instigated by the Staff Liaison Committee was valid, and they at no stage acted ultra vires as alleged by the Worker. 

The present dispute involves numerous allegations regarding procedural defects in an investigation process. The Worker has submitted that the process should be set aside, while the Employer contends that the process was procedurally sound and should continue.

I note that some procedural defects were identified by the representative for the Worker in advance of the investigation meeting. Firstly, it was confirmed that the meeting was in fact an investigation meeting, and not a disciplinary meeting as previously advised. Secondly, it was confirmed that the matter was not, at that juncture, being treated as potential gross misconduct and termination was not being considered at that point.  In this regard, I note that the Employer had made some procedural errors in the initial stages of the process, but that these were cured on foot of representations from the Worker. I note that the parties attended the meeting on 25th June in the knowledge of the subject and purpose of the meeting, and that all parties engaged with the same in good faith.

The matter becomes somewhat more complex when the outcome of the meeting is considered. It is common case that the matter was paused pending the completion of a “trial period”. It appears that the purpose of this trial period was to ascertain whether the Worker was willing to take direction from the CEO and work collaboratively going forward. The first point to be noted here is that while most of the allegations to be investigated involved the inter-personal relationship between the Worker and his manager, some others did not. Following this meeting, it is not clear whether these other allegations were to be set aside pending the successful completion of the trail period or were paused to be considered at a later date. What is also unclear is whether the process as a whole was to be finalised pending the successful completion of the trial period or whether it was to be re-convened, with the outcome of the trial run to be utilised as a mitigating factor.

By the Employer’s correspondence of 3rd September 2019, they advised that,

“We agreed at the end of the disciplinary investigation meeting, that It was in the credit union’s, the manager’s and your best interests to provide you with an opportunity to correct the behaviours that has caused us to be in the disciplinary investigation meeting with you”.

By response dated 16th September 2019, the Worker’s representative stated,

“It was agreed that both the manager and (the Worker) would work together in a supportive and respectful manner and that the disciplinary process would be set aside for three months. If there were no issues in that period, then the disciplinary process would end.”

The Employer’s correspondence of 3rd October 2019 denies this interpretation of events, stating that,

“We indicated that the we would review matters and determine if the disciplinary investigation process should re-commence or continue to be placed on pause or be concluded”.

Certainly, at the hearing of the matter, the Worker was of the view that should he complete the trial period without any further incident, the matter would be concluded. While I appreciate the parties were seeking to come a resolution regarding a difficult matter, a lack of clarity on this point gave rise to many of the difficulties arising in this dispute.  

In this regard, I note that no contemporaneous correspondence was issued to the Worker regarding the points of agreement. The correspondence of 3rd September came towards the end of the three-month period and became, of itself, a point of contention between the parties. Having regard to the foregoing, I find that while both parties reached an agreement regarding the “trial period”, the responsibility for formally and contemporaneously recording the same lay with the Employer. In circumstances where this did not occur I find in in favour of the worker and find that the process was to be finalised on the successful completion of the three-month period.

The second point to note is that this agreement was not subject to any caveats or qualifying criteria. Notwithstanding the foregoing, the Employer sought to extend the trial period by a further three months. Having regard to the same, I accept that the third-party data breach was a significant and exceptional event that created a substantial amount of additional work for the Worker’s manager.  However, the purpose of the trial period was to establish whether the Worker could work harmoniously with his manager. In the Employer’s correspondence of 3rd September, they stated that,

“…we agreed that you must communicate 1-1 with your manager, you must respect her as a colleague in line with the respect and dignity for all colleague, and you must respect her as your manager and the manager of the credit union”.

At the end of the trial period, it was apparent that the Worker’s manager did not encounter any such difficulties regarding her relationship with the Worker. If this is what occurred during an exceptional period of stress, it stands to reason that this would be the position during more typical times. The fact that no evidence of inter-personal difficulties arose at this time is, in fact, an outcome of the trial period. I further note that the extension was unilaterally imposed by the Employer at the end of the trial period.

The final point to note is that the correspondence of the 3rd September, while ostensibly relating to an investigation process, contains language that indicates that the Employer had found against the Worker. This correspondence refers to the “absurdity and inappropriateness of your actions”, stated that “we were shocked and horrified when you complained (about) your manager” and stated that “we outlined to you that (your manager) was 100% correct in the various issues she brought to you”. Such statements clearly indicate that the Employer had, at a minimum, formed a view that the fault for the inter-personal issues lay with the Worker. To reach such a conclusion, and to communicate the same during an open investigation, represents a significant procedural breach.

Having regard to the foregoing points, I find that the responsibility for clarifying the extent and nature of the agreement regarding the outcome of investigation lay with the Employer. In circumstances whereby the same remain unclear at the date of the hearing, I find in favour of the Worker and find that the process is finalised following the trial period. Further to the same, I find that this trial period was completed three months after the investigation meeting, in line with the original agreement.  In light of the foregoing, I recommend that the subject matter of the investigation meeting of 25th June 2019 is finalised. For the avoidance of doubt, this recommendation relates to those matters discussed at that meeting and does not relate to any further issues that have arisen in the interim.

I recommend that the subject matter of the investigation meeting of 25th June 2019 is finalised. For the avoidance of doubt, this recommendation relates to those matters discussed at that meeting and does not relate to any further issues that have arisen in the interim.

Procedures, pause, delay, investigation