Complainant

Respondent

Anonymised Parties

A postal operative

A postal service

Representatives

Cormac O'Dálaigh Communication Workers Union

David Moran Respondent

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-00043879-001

05/05/2021

The employee is a postal operative and is working for the employer since March 2006.  As a result of a number of incidents which resulted in disciplinary sanctions the employee was compulsory transferred to another office.  He is appealing against this transfer and the other sanctions which led to this action.

The employee has worked for the employer for over 20 years.  A breakdown in relations with his manager occurred when he raised concerns, in 2019, of what he felt was inappropriate mistreatment of two female employees.  The employee contends that he was physically threatened by his manager after raising this issue.  The employee was the subject of an investigation and disciplinary sanction as a result of an alleged altercation between the employee and a supervisor.  The employee submits that he was not given access to CCTV or witness statements.  He was advised by his trade union to accept a 2nd Level Warning.  This was appealed. There was a further element to this disciplinary action which was that if there were any disruptive behaviours the employee would be transferred to another of the employer’s offices.   The employee returned to work after a period of sick leave and a number of colleagues walked off the office floor.  The employee submits that no action was taken against these employees, but he was forced to take a period of four months gardening leave and as a result suffered a loss of earnings.  In addition to the appeal the employee also submitted a complaint of bias and he has raised an issue that the same person heard both appeals.

When the employee resumed duty, he was concerned about the practices in place as a result of the COVID-19 pandemic.  He highlighted these and feels that he was victimised for raising these Health and Safety concerns.  The employee was further victimised for taking photographs on his private mobile phone.  He was informed of complaints by colleagues but never provided with copies of the complaints or informed who made the complaints.   One of the elements of his disciplinary sanction was the compulsory transfer to another office.  This was put on hold pending the employee’s positive behaviour in the workplace.  

The employee disputes the employers view that he was given access to all complaints and witness statements.  He outlined that these have been consistently refused.  In relation to the photographs there were no complaints made by any employee.  The fact that no action was taken against the 8 employees who walked out shows that there is a clear attempt to get him out of the office. 

He had to submit a subject data access request, and this resulted in him obtaining heavily redacted documents.  He does not know who made the various complaints.  The employee also submits that the employer failed to properly investigate any of the matters and provided examples where no evidence or meetings took place with witnesses.

It was submitted on behalf of the employee that he has been unfairly treated at all stages by the employer.  What began as his attempt to raise concerns about the behaviour of a manager led to a witch hunt against him by the employer.  The employee and his family have suffered considerable stress as a result of the actions of the employer.  The employee has suffered financial loss.

In relation to the reassignment it was submitted on behalf of the employee that he has to cycle over 10k each day to work in an office he is unfamiliar with.  He also does not know the geographical area.  The employee’s representative submits that all sanctions should be over turned and that he should be compensated for the loss of earnings and stress suffered as a result of the employers’ actions.

The employee’s representative said that the imposition of a disciplinary sanction in this case should not result in a  “life-sentence” in the context that it should not be on a perpetual basis.

The employer set out a sequence of events and timelines in relation to this dispute. 

September 2019:  Incidents in office A

20/2/2020:  Disciplinary sanctions:  2nd Level Written Warning and reassignment to alternative office.  The reassignment was deferred following trade union representation and the employee was advised that this would be activated immediately if he did not comply with the commitments outlined in the letter of sanction.

15/4/2020:  Appeal hearing.  Outcome was that the appeal was not upheld.

20/03/2020:  Employee submitted grievance against the managers who were involved in this case.  Grievance alleged bias and that he was not afforded fair procedures and natural justice.

23/04/2020:  Response to grievance and no evidence to find unfair procedures or lack of natural justice.

November 2020:  The employee was the subject of further investigation in relation to the taking of photos in the workplace and his failure to report health and safety concerns.  Other matters included the refusal to attend a meeting with his manager and his refusal to wear a face covering until instructed to do so.

7/12/2020: Employee requested to provide explanations either by way of meeting or a written response.

14/12/2020:  Employee provided a written response to these issues.

14/01/2021: Explanations were considered by a manager and considered to be contrary to agreement and would be dealt with through the employers’ disciplinary process.

26/01/2021:  Area manager decided that having considered the matter the deferred reassignment to an alternative office should now be activated.  An appeal was provided for.  Employer submits that no appeal was received within the time provided.  At the request of the employee’s trade union the matter was further deferred pending the hearing of the grievance outcome in April 2020.

23/02/2021:  Grievance meeting took place in employers head office.  Outcome issued in March 2021.

April 2021: Employee advised that the reassignment to an alternative office would not be implemented.  This was deferred at the request of his trade union to allow an appeal of the reassignment element.

14/04/2021:  Appeal hearing. Decision to reassign upheld and reassignment confirmed for 19/04/2021.

16/04/2021:  Employee commenced a period of sick leave and following this he was reassigned to the alternative office in September 2021.

In addition to this the employer submits that the issued which occurred in November 2020 gave rise to the reassignment was the subject of disciplinary hearing in August 2021 by an independent manager.  The outcome of this was issued in September 2021 and resulted in a Second Level Written Warning.  The employer notes that this showed a lot of leniency in view of the reassignment and that in normal circumstances an employee in similar circumstances would be issued with a Final Written Warning.  This warning is the subject of a separate appeal process.

The employer notes that the reassignment took place because of the behaviours in November 2020 and not the incident in 2019.  It was the employee’s failure to abide by the commitments given in February 2020 that resulted in the situation he now finds himself in.

It is the employers’ position that the core principle of their disciplinary process is to change behaviours and not merely a means of issuing a sanction to an employee.  The employee did not take the opportunity presented to him and the employer implemented the deferred sanction as a result.  It is the employer’s position that they acted in a reasonable manner at all times and that they applied fair procedures in all of these matters.

In conducting my investigation, I have taken into account all relevant submissions and extensive appendices presented to me by the parties.  This complaint is made under section 13 of the Industrial Relations Act, 1969. The employer did not dispute that the matters raised by the employee’s complaint falls within the provisions of the Industrial Relations Acts 1969 and 1990 or the definition as provided with the 2015 Act.

By way of clarification I advised the parties that this was an industrial relations dispute and not an employment rights matter.  There is no formal evidence taken at hearings of this nature and it is not the role of the Adjudicator in these cases to make findings of fact.  I clarified that the role of the Adjudicator is to make a recommendation to try and resolve the dispute.

The issues in this dispute commenced in September 2019.  It is clear that the employee feels that this entire process was designed as a retaliation after he made a serious complaint about the behaviour of his manager.  It is also clear that the employer had to deal with a number of incidents involving the employee and that the result of this is the conduct of the employee.

There have been a number of investigations, disciplinary hearings and appeal hearings in relation to these matters.  I have been asked to provide a recommendation that will bring this dispute to an end.  My starting point in this matter is that “you can’t unring a rung bell” and this analogy is used to clarify that I cannot rescind the sequence of events or any of processes that have taken place. There is a clear conflict that the employee perceives that the process was flawed, and the employer holds the opposite view.  It would be unrealistic and counterproductive to expect that any new process would result in an outcome that would be acceptable to both parties.  It is my recommendation that this dispute is looked at in the context of what can be achieved in the future.  The working relationships in Office A are a factor and while the employee is currently reassigned to Office B it is my recommendation that this is not a permanent move.  The question of what period of time this should involve deserves serious consideration. I note that at the hearing the employer’s representatives indicated that they would be open to consider this in the future. 

It is my recommendation that the employee apply to be reassigned to Office A in September 2023 and that the employer engage with the employee and his representatives in that regard.  The employee is of course also free to confirm if he wishes to remain in Office B.  This is predicated on the expectation that there are no active disciplinary warnings on his file at that time.

I am also recommending that the employer in this case reviews its procedures to confirm and/or ensure compliance with the provisions of S.I. No. 146 of 2000, Code of Practice on Grievance and Disciplinary Procedures.

Disciplinary sanction.  Reassignment.