LCR22623

1.Appeal Of Adjudication Officer Recommendation No(S)ADJ-00011397 CA-00015128-001

BACKGROUND:

2.The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 20 August 2018 in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 8 July 2022. The Following is the Court's Recommendation.


DECISION:

Background

This is an appeal by the Worker of Recommendation ADJ-00011397 of an Adjudication Officer in respect of the Worker’s complaint that the decision of the employer to issue a final warning was unfair and procedurally flawed and that the warning should be rescinded. The Adjudication Officer held that there were flaws in the procedure and recommended that the final written warning issued should be reduced to that of written warning.

Summary of Worker’s submission

The Worker was employed since 2006 as a driver in the transport section. On the 3^rdFebruary 2017 he received a letter inviting him to attend an investigation meeting on the 10^thFebruary 2017. The letter stated that the Employer had received complaints from three employees and copies of the complaints were attached to the letter. Meetings were held on the 3^rd,10^thand 23rd February 2017. At the meeting on the 23^rdFebruary 2018, a further issue was raised in respect of a breach of confidentiality by the Worker by sharing details of the complaints against him with other staff.

In the course of the investigation the Worker tried to address the issues as best he could, and he also raised a number of issues of concern to him in respect of the complaints and the procedure. The investigation was concluded and in a report of the 25^thMay 2017 the complaints were upheld. The Worker was provided with a copy of the report. A disciplinary hearing was held on the 29th June 2017 and the Worker was issued with a final written warning on the 5th July 2018. The Worker submitted an appeal, but his appeal was not upheld. In accordance with the Employer’s procedure disciplinary sanctions are paused during a sick leave absence so it was still in being at the time his employment came to an end.

SIPTU on behalf of the Worker submitted that the Worker was not afforded a fair and impartial hearing in that they had not followed their own procedure and they had taken into consideration previous issues that had never been the subject of a disciplinary process. While noting that the Adjudication Officer had reduced the sanction, and that the Worker is no longer in the employment, SIPTU submitted that the Worker was looking for the sanction to be removed on the basis that it should never have been issued.

Employer’s submission

The Employer submitted that since the issuing of the Adjudication Officer’s recommendation the Worker had been dismissed and therefore the final written warning expired by virtue of the termination of his employment and as such no longer exists. The Employer drew the Courts attention to a previous decision of the Court LCR21763Tesco Ireland and A Workerand the Courts finding that at the time of the hearing the final written warning had expired and therefore the issue was moot. The Employer submitted that it was perfectly in order for them to review the Worker’s file and take into account previous complaints and that the sanction of a final written warning was just and proportionate.

Decision

The Court is aware that there is an Unfair dismissal pending and unlike the Tesco case the warning did not expire by the passage of time but in this case the warning expired on the termination by the Employer of the Worker’s employment. Having considered the submissions of the parties both written and oral the Court finds that it was not appropriate for the Employer to take into account details on the file without telling the Worker this was going to happen and affording him an opportunity to be heard on that issue. The Court taking all things into consideration upholds the decision of the Adjudication Officer. The appeal fails.

The Court so decides.

	Signed on behalf of the Labour Court
DC	______________________
18 July 2022	Louise O'Donnell