Worker

Employer

Anonymised Parties

A catering assistant

A catering provider

Representatives

Dave Curran SIPTU

Robert Jacob, Jacob and Twomey solicitors

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-00034944-001

02/03/2020

The dispute relates to a disciplinary warning given to the worker and a reduction in his working hours. The warning related to six issues, including being late, not obeying a reasonable instruction and unauthorised absences. The worker was a catering assistant and was paid €11.50 per hour.

The worker outlined that he commenced in the role in November 2015 and worked from one location. His employment was subject to a transfer of undertaking in 2019. He outlined that he had always worked a minimum of eight hours but consistently worked 40+ hours per week. At his request, this was reduced to 30+ hours as he was studying.

The worker outlined that he was summonsed to a disciplinary hearing, where a number of allegations were put to him. He explained why he had been late on a number of occasions, for example in November 2019. This followed his start time being changed to 7am without him being aware of the change.

The worker said that the allegation of a poor attitude related to his response to a Whatsapp, where he could not start work on dinner service as he was unable to leave the building he was then in. The worker said that it had been inappropriate for the employer to rely on the Whatsapp message as this was private communication with a colleague.

The worker said that he had informed a colleague that he was taking a break but could not find a manager to tell them. While taking the break, he met the manager casually and was open that he was taking a break. He did not realise that he had to tell a manager before taking a break. The worker outlined that the six absences were not consecutive. He had texted to say he would be late and did not realise that he had to phone.

The worker outlined that the disciplinary meeting was aggressive and that he had not agreed to reduce his hours. He outlined that he was given a nine-month warning and had his hours of work reduced. He had asked for more hours and was told that he would not get them.

The worker outlined that as of the adjudication hearing, he was on lay-off as the offices were closed because of the pandemic. He had clarified to the employer that he wanted more hours. He had incurred a loss of income because his hours had been reduced. The worker submitted that this had been a punitive action by the employer and that the disciplinary policy did not envisage a reduction in hours. There had been no other disciplinary issues raised before.

The worker sought a recommendation that he return to full hours and to be compensated for the loss of income incurred by the reduced hours over six weeks. The worker outlined that on the 6th February he clarified that he wanted additional hours. This was by way of an email to a named manager (not in attendance at the adjudication).

In reply to the employer, the worker outlined that he signed forms as part of the induction. It was only later that he was told that he had to notify a manager when he was taking a break. He outlined that the December late was his fault as he assumed he was starting at 10am. This was the only occasion when he did not work at all, the others he worked his shift.

The worker outlined that he had been happy to work additional hours and had retracted his wish to reduce his hours to eight hours per week. He retained the same availability as before, but the employer would now only provide him with 8 hours per week.

At the outset of the hearing, the employer clarified the name of the employer. It outlined that following the consultation arising from the transfer of undertaking, the worker had confirmed his contracted hours and his willingness to work additional hours.

The HR manager said that she met the worker to remind him about being on time and to notify a manager if he was to take a break. The worker was then invited to the investigation meeting. The employer made findings regarding the worker’s duty to check the roster and to arrive on time. The employer outlined that this was not the first instance of lateness. There was the incident of the worker refusing to start the dinner service. The worker was required to notify management and not just a colleague if he was to take a break. The employer outlined that recent induction training was clear that an employee who was going to be late had to phone in and not just text.

The employer outlined that the letter of the 3rd February confirmed the warning. The worker’s appeal had only related to the warning and not to the reduction in hours. The initial decision was upheld. The employer outlined that the warning for nine months was in accordance with the disciplinary policy.

The employer could not say whether the worker had asked on the 6th February that his hours be increased. The employer outlined that the worker’s hours were reduced at his request. It submitted that the minutes were accurate, in particular that the worker had asked to reduce his hours. The employer said that it relied on the fact that the contract provided for only 8 hours. It outlined that there was no issue with increasing the worker’s hours once the unit re-opened. The employer submitted that the reduction in hours was not linked to the disciplinary sanction. There was no reference in the letter of sanction to any reduction in hours.

The worker has worked as a catering assistant since November 2015. He provides catering in the offices of a named accountancy firm. The service was subject to a transfer of undertaking, with the employer taking over as transferee in September 2019. I note that the matters that form part of this dispute began shortly after the transfer of undertaking was completed. While the worker was a longstanding member of staff, the worker and the employer were new to each other. Matters between them got off on the wrong foot.

The second factor in this case is the intervention of the pandemic and the temporary closure of the offices as staff of the accountancy firm worked from home. The worker was on lay-off as of the adjudication hearing.

As set out in section 13 of the Industrial Relations Act, 1969, the role of the adjudication officer is to ‘investigate any trade dispute’ and to ‘make a recommendation to the parties to the dispute setting forth his or her opinion on the merits of the dispute.’

This dispute relates to a first written warning issued on the 3rd February 2020 and to last nine months, when it would be ‘removed’ from the worker’s record. The sanction was upheld on appeal. The worker also raised his rostered hours, which had been reduced to eight hours and he outlined that he would ordinarily have been rostered for 30 hours per week.

Disciplinary sanction

The warning was based on six allegations around time-keeping, attendance, attitude and complying with procedures. While the worker outlined the circumstances around being late or not attending (a long commute and education commitments), it is fair to say that there were occasions when the worker was late or did not attend at all (allegations 1 and 6). It was, therefore, open to the employer to engage the disciplinary process in respect of these issues and to make the findings it did.

I do not think that the warning was merited for poor conduct and attitude (allegations 2 and 3). First, this was largely based on a Whatsapp conversation between the worker and a manager. This was on their personal phones and not devices supplied by the employer. As evidenced in the conversation thread, their messages were short and to the point. There is an inevitable coldness to messages communicated in writing and I do not think one can deduce poor attitude or conduct from a reply ‘no, sorry’. The issue of whether the worker should have gone to Block A on the 11th December 2019 is a communication break-down between the manager and the worker, rather than a disciplinary issue.

Allegation 4 related to the worker leaving the workplace to take a 15-minute break. The incident related to the 3rd December 2019 when the worker met a member of management on a busy shopping street. The employer stated that the worker had been told at a meeting on the 20th November 2019 that he had to inform management if he was leaving the building. On the 3rd December 2019, the worker had informed a colleague that he was leaving the building for his break and could not find a member of management on his floor. While the employer had stated that a member of management should be informed if the worker was taking a break and leaving the building, it was unclear what to do if no manager was present on site at the time. The employer provides services at different locations within the client offices (see the incident of the worker being asked to work from Block A). What should the worker do if no manager was immediately present? Especially in catering, a worker might miss the opportunity to take a break if it is difficult to get permission to take the break. Given that this was a once-off incident and the lack of information of how to contact management when they were not in the same workspace as the worker, the allegation cannot form the basis of a disciplinary sanction.

Allegation 5 related to complying with the absence policy. The worker had texted the manager on occasions he was late. The absence policy required that contact be made by telephone and explicitly not by message. The worker acknowledged that he had not phoned the manager and said that he had no recollection of this being set out at the induction (i.e.at the time of the transfer of undertaking). The worker outlined during the process that it was now clear to him that he should phone and not message if he was running late or going to be absent. On the day in question, the worker messaged and did not phone and therefore there was non-compliance, albeit in respect of one occasion.

The warning has expired through the passage of time. According to the disciplinary policy, it has been removed from the worker’s record. I make the above findings in the event that there is discussion at some point in the future about this warning. The employer outlined at the hearing that the warning has expired and been removed from the worker’s record, and I recommend that the employer write to the worker to state this.

Hours of work

The dispute also relates to the six-week period the worker was on reduced hours, where he was assigned eight hours, rather than the usual 30 – 40 hours. The worker recorded on the handwritten transfer sheet completed at the time of the transfer of undertaking that his contracted hours were eight hours per week.

The employer states that it reduced the worker’s hours because the worker asked for this at the disciplinary hearing. The employer stated that it has no difficulty in restoring the worker’s hours once the facility re-opens.

The worker stated that the minutes of the disciplinary meeting are inaccurate, that the meeting was aggressive and that what he said had been taken out of context. He said that he also asked that he be returned to normal hours, but a manager refused to do so.

The conversation regarding reducing the worker’s hours took place in the discussion of the attendance allegation. The warning letter did not refer to the hours issue. At the appeal hearing, the worker challenged the reduction in his hours and the accuracy of the minutes at the appeal hearing, but this was not upheld.

The issue of the worker’s hours was raised during the discussion at the disciplinary meeting about absences and being late. The worker’s hours came up in passing and he was asked if he wanted to reduce his hours. Even if the minutes of the meeting are accurate, it was not correct for the employer to fix the worker with what he said about reducing his hours. What the worker said was said during a disciplinary meeting about many allegations and where the worker was on the back foot, in particular on the issue of being late and absences. The employer’s submission is that the reduction in hours was not a disciplinary sanction. I accept that submission and this is why the hours issue should have been addressed separately to the disciplinary meeting. It was open for a manager to approach the worker after the disciplinary meeting to say that the worker had mentioned reducing his hours and was this something he now wanted to action. The hours and the disciplinary sanction were separate, and therefore should have been dealt with separately.

I note that the worker asked for his hours to be restored but this was not acceded to. I note that the employer operated an extensive roster with some 31 staff and the worker had an established working pattern.

I am satisfied that this issue is properly before me as it was canvassed at the appeal hearing and a ‘final and conclusive’ decision made by the appeal manager. I find, therefore, that it was wrong for the employer to reduce the worker’s hours as this was done on foot of something said in a disciplinary process. As stated above, as the hours and disciplinary process were separate, they should have been dealt with separately.

I recommend that an award of redress is appropriate in the circumstances. In the circumstances, I recommend the payment by the employer to the worker of €1,000.

CA-00034944-001

I recommend that the employer write to the worker to confirm that the warning has expired and has been removed from his record. I recommend that the employer pay to the worker €1,000 as redress for the reduced hours.

Industrial Relations Act / disciplinary process / reduction in hours