Complainant

Respondent

Anonymised Parties

A Worker

A Pharmacy

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

The Worker stated that that he was issued with a warning in April 2021 as a result of his failure to wear a face covering for a very brief period while at work. He stated that this was unfair and caused him to lose a bonus payment that he was due to receive.

The Worker stated that his employment was uneventful until January 2021 when he received an invitation to attend an investigation meeting relating to the non-wearing of a mask for varying but short periods of time.

It was highlighted that the Worker was not presented with any evidence in advance of the investigation meeting despite this having been requested by his representative. At the meeting, it was asserted that the Employer made reference to an allegation of a breach of the Company’s Face Covering policy, despite the fact that no such policy had been implemented. It was also stated that instead of a policy there were only face covering guidelines in place where no reference was made to disciplinary sanctions in the event of non-compliance. The Worker’s representative also highlighted that the alleged non mask wearing was uncovered via the use of CCTV and that despite him having objected to this because the use of same was only allowed in the context of alleged fraud or theft, the Employer proceeded to do so in making their findings.

Having agreed to proceed with the process on a without prejudice basis because the Worker’s representative asserted that he was not being afforded the principles of natural justice, the Worker was invited to a disciplinary hearing following the conclusion of the investigation. At the hearing, the Worker highlighted that he had been on the front line since the start of the pandemic, that his non-compliance amounted to little more than a momentary lapse of concentration and that the issue should be treated as a re-training matter.

Arising from the disciplinary hearing, the Worker was issued with a final written warning which meant that he was not eligible to receive his bonus payment because any worker with an active first written warning or higher is not eligible to receive such a payment.

The disciplinary sanction was appealed which resulted in the sanction being downgraded to a first written warning.

The Employer stated that the within complaint arose following a disciplinary process initiated by the Employer in respect of incidents which took place on 28 December 2020, not long after the country returned to Level 5 restrictions from midnight on 24 December 2020.

Specifically, the Worker was invited by letter to an investigation meeting to discuss allegations against him, which pertained to health and safety beaches. The letter proceeded to clarify the specifics of the allegations, namely that on 28 December 2020, the Worker did not wear a face covering for a period of approximately 30 minutes. The Employer stated that this was contrary to company policy as well as HSE and NPHET guidance around the use of surgical masks in the healthcare setting.

The invite letter was accompanied by copies of the following attachments which were listed

in the body of the letter:

·       PPE and face covering guide

·       Disciplinary policy

·       Signed colleague checklist

The respective investigation meeting took place on 18 February 2021 during which the Worker attended with his Trade Union representative. The investigation meetings were conducted by the Store Manager. The Store Manager provided the Worker and his representative with an opportunity to view the CCTV footage showing them failing to adhere to the Company’s PPE and Face Covering

Guide.  The Trade Union representative’s objections to the use of CCTV on behalf of his member were noted.

Following a thorough investigation, the Store Manager issued her Investigation Outcome Report on 12 March 2021 and advised that the matter was being progressed to a disciplinary hearing in respect of the allegation at hand. The Worker was subsequently invited to a disciplinary meeting on 25 March 2021 and once more informed of the allegations against him. The meeting was conducted by the General Manager and the Worker was accompanied by his trade union representative.

The outcome of the Disciplinary Hearing was communicated to the Worker by way of letter dated 6 April 2021 and he was issued with a final written warning which was to remain on file for a period of 12 months. The Worker was informed of his right to appeal this decision in writing to the Area Manager within five days.

The Area Manager heard the appeal from the Worker on 6 May 2021. His Trade Union representative supported the Worker once more in his appeal. Having considered all matters raised by the Worker and his representative, the Area Manager duly chose to overturn the decision of the disciplinary stage and reduce the sanction from a final written warning to a first written warning.

The Employer also highlighted that the Worker’s written warning has now been expunged from his file given that it has expired.

I note firstly the assertion of the Employer that the warning is expunged and that, in line with previous decisions from the Labour Court presented to me, I should not make a recommendation in favour of the Worker on this basis. In this case however, I note that the imposition of a written warning also meant that the Worker did not receive a bonus payment and that he is therefore still at a financial loss as a result of the sanction, notwithstanding the expiry of the warning.

In deciding on a recommendation, I find firstly that that it was reasonable for the Employer to impose the sanction of a written warning in respect of the Health and Safety breach, given that it was not disputed that the Worker was seen on CCTV not wearing a mask and that the breach occurred in a healthcare setting in the extraordinary world in which we lived at the time. While I recognise that the Worker was only found not to have worn his mask on one occasion, I cannot ignore that this was for a period of approximately 30 minutes when covid 19 was at its peak.

In terms of the procedural fairness, I noted that the Worker was afforded a full investigation of the allegations made against him, that he was given the opportunity to respond to the findings of the investigation during the disciplinary hearing, was given his full rights of appeal in respect of the sanction imposed and was afforded the opportunity to be accompanied by his union representative at every stage throughout the process. While the Worker’s representative asserted that the Employer should not have used CCTV for the purpose of the investigation, I have regard to the findings of the Labour Court in the matter of Mr Thomas Gifford v Go Ahead Transport Services (Dublin) Limited (UD/20/191) where it was stated that:

“Arguments about the use of data are outside the competence of this Court. Any alleged breaches of the Worker’s rights in this regard are a matter for a different forum.”

Given my findings that it was a reasonable decision on behalf of the Respondent to issue the Worker with a written warning and that he was afforded procedural fairness throughout the process, it follows that the penalty which flowed from the imposition of the sanction, namely the non-payment of the bonus, was also fair and reasonable because same is provided for in the Employer’s procedures.

I cannot make a recommendation that is favourable to the Worker for the reasons set out above.