Complainant

Respondent

Anonymised Parties

A Cleaning Operative

A Cleaning Company

Representatives

Eoin Drummey  Unite the Union

Dermot O'Loughlin ,Alpha Employment Representation Services

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-00041693-001

23/12/2020

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

This case is conjoined with ADJ 31376, ADJ 31377 and ADJ 31374 and all four cases were heard together.

On 23 December 2020, the Union, unite on behalf of the Worker submitted a complaint to WRC. The complaint referred to a Dispute under Section 13, Industrial Relations Act, 1969 and pertained to the application of a 12-month disciplinary sanction.

The Employer responded to the claim and confirmed that the Company had followed fair procedures.

Both parties were represented and both parties submitted comprehensive and helpful submissions.

The parties participated fully at hearing. Both parties heard and considered the points made and responses received. This resulted in both parties reaching a consensus in agreed wording, contained in my Recommendation to follow.

I thanked both parties for their work in the case.

The Union outlined the background to the case where the Worker had commenced her employment on 1 September 2010, as a Cleaning Operative in a busy clinical area. She transferred under TUPE Regulations in November 2019. The Employer contracts services to a large Public Body.

The issue at the centre of the case originated when the Public Body raised a complaint with the Employer, regarding the location of the complainant and her colleagues during a work shift in June 2020. The matter was elevated into an Investigation and eventual disciplinary sanction of 12 months written warning. This was appealed by the Union and eventually expired in August 2021.

The Worker’s case was that she was not aware of the “restrictions applied to the zone “. She understood that the area continued accessible to her. She also raised a concern regarding the Public Body’s CC TV footage relied on in the Investigation. She contended that this was inadmissible. The worker had no recollection of attending a prohibited area.

The Worker was not provided with a full awareness of the commercial sensitivities of the complaint and now wished to move forward in the matter by expunging the record of Disciplinary sanction.

The Employer operates a Soft Service Business through UK and Ireland. The Worker joined the Company through the application of TUPE on 2 September 2019.

The Employer Representative outlined that the Senior Manager at the Business had received an Operational complaint from a major client in June 2020. The complaint, which was read into the record at hearing required a detailed investigation and a client outcome report.

The Employer undertook this investigation with due diligence affording all participants representation and recorded minutes of meetings.

The occurrence warranted Disciplinary sanction of a 12-month written warning, which was appealed but not disturbed.

The Employer contended that the Company followed a fair procedure in line with SI146/2000, Code of Practice on Grievance and Disciplinary Procedures. The Employer provided an opportunity for the Worker to respond fully to the complaint with full representation. 

The Employer was permitted to rely on Client CC TV footage for the purposes of disciplinary/grievance investigations.

The matter was fairly and impartially determined.

During the hearing, the Senior Manager shared the full detail of the operational complaint, which placed an enhanced context and background to the occurrence.

The Employer expressed a keen interest in exploring an option for moving forward in the case, mindful that the record of disciplinary sanction had now expired.

I have listened carefully to both parties stated submissions. I am conscious that I have had the opportunity to consider this event of this case retrospectively. It was not my objective to decide who was right or wrong in the case. I did establish that all four workers carried a strong residual hurt and disappointment at their treatment, which had not dissipated on expiration of the warning in August 2020.  I also established that the Employer considered the matter closed followed expiration of the warning.

 For my part, I actively and conjointly reviewed the procedural framework associated with the initial Incorporation of the Complaint, the inter play of the internal and external Investigations, the Investigation report and both parties’ roles therein.

I was also struck by two seminal overarching events.

1 the climate of TUPE November of 2019 and the bedding in process which was actively unfolding for both parties.

2 the overarching emergency climate of covid 19 which prompted changes in operational rules in the first instance.

I hosted a three-way discussion on these issues, where I found both parties reflected   on the position faced by the Company  and the Union in June 2020.

 I have found that there was room for improvement in how both parties addressed the procedural framework of complaint management.  I am hopeful that the parties have taken some learning from this.

Both parties wanted to draw a line under these occurrences and move forward in everyone’s best interests.

I wish to acknowledge the contribution of all who attended this hearing and for the forthright contributions which prompted a more comprehensive understanding of the issue for both parties and led to a mutual agreement governing the way forward in the case.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have found some merit in the Dispute and make the Recommendation as agreed with the parties at hearing.

1.       The Employer has agreed to   re-categorise the written warning applied to the Worker as a first stage “discussion on record “. This record expired on 20 August 2021 and has been disregarded.

2.       Both parties agreed to prioritise optimal staff relations at the Business.

3.        Both parties agreed to respectful notification of any proposed or actual operational change to anchor the trust building and optimise company performance with clients.

Appeal of Disciplinary Sanction, Written Warning