Complainant

Respondent

Anonymised Parties

A Lifeguard

A County Council

Representatives

Arek Muszynski SIPTU

Amanda Kane Local Government Management Agency (LGMA)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00045565-001

06/08/2021

The Worker stated that that he was issued with a final written warning in June 2021 as a result of a complaint submitted in June 2020.   He was a seasonal worker employed each year from June to September.  He submits that the warning was the outcome of a disciplinary process which took place during his 2020 employment, and which was only finalised in September 2020 after his contract had ended.  He was re-employed the following year from June 2021 and was advised that the sanction of Final written warning was being assigned to his file for a period of 12 months.  He submits that the warning should not have carried over from his previous employment as he was not employed by the Council from September 2020 to June 2021.

The worker who was employed as a temporary lifeguard by the Council on a seasonal basis was the subject of a complaint from a member of the public in relation to an incident on a named beach in July 2020.  He submits that the investigatory process began in early September 2020, however the workers contract expired on 13th of September 2020, his employment was seasonal and set out in Fixed Term Contracts which covered the summer months each year.  He had been employed for a number of years on such contracts.

It is submitted that the investigatory process and subsequently disciplinary sanctions happened after the workers employment finished and in his absence.   The worker re-applied for the position of Temporary Lifeguard in 2021, was successful on reaching the panel and then being offered a new contract.   On 15th of June 2021, ten days after the workers first assignment, in his summer 2021 employment with the employer he received a Final Written Warning for alleged misconduct relating to his previous contractual arrangements from July 2020.    The matter was appealed by the worker and his Union, and the appeals meeting took place on 7th July 2021. The appeal was not upheld, and the worker received a Final Written Warning for the period of 12 months.   He received an active Final Written Warning for an alleged incident which related to his employment the previous year.

Finally, it is submitted that the employer relying on the issuance of the Final Written Warning in 2021, precluded the worker from securing the position of Senior Lifeguard in March 2022. This has caused great affront to his good name and professional reputation.  The worker is seeking reinstatement in this regard.    This further application took place post the lodging of this dispute which happened in August 2021.

Based on the complaint presented the worker requests that the case be deemed well founded, the warning rescinded and expunged from the workers records and that the employer complies fully with the provisions of S.l 146/2000 and that compensation be awarded to the worker.

The Employer submits that on the 16th of July 2020, a complaint was received from a member of the public in respect of an incident which took place on a named beach on the 15th of July 2020 involving the worker who was employed as a seasonal Beach Lifeguard.   On the 16th of July 2020, the Water Safety Officer phoned the worker and received a verbal report of the incident from him. She requested a written report of the incident from him which was received on the 18th of July 2020.   The Water Safety Officer also phoned the member of the public who made the complaint and spoke to another member of the public who witnessed the incident. She documented their discussion about the incident.    

The worker was invited to a formal investigation meeting on the 24th of July 2022 to discuss the complaint.  At this meeting the worker confirmed that the complaint as outlined had taken place.  This report was referred to Human Resources on the 5th of August 2020. On 6th August 2020, HR appointed Mr. K, Senior Executive Engineer (SEO) to consider the report, hold a disciplinary meeting with the worker and to apply an appropriate disciplinary sanction, if necessary, in accordance with the Council’s Disciplinary Policy and Procedure.

By letter dated 20th August 2020, the worker was requested to attend a disciplinary meeting with the SEO on the 26th of August 2020.  The notification to the worker issued by registered post but he did not receive it.  Another meeting was arranged for 2nd September 2020 and the worker was notified and did attend the meeting.    In both letters, the worker was afforded the opportunity to be accompanied to the meeting by his trade union representative or a work colleague.   He was also offered the Council’s welfare supports.

The SEO concluded his report on the 21st of September 2020 and emailed it to HR. The report recommended that:  a final written warning be issued to the worker and that consideration should be given to placing the worker on an alternative beach i.e., he should not be assigned to the same beach if he was re-employed as a lifeguard by the Council for the 2021 summer season.

This report was issued to the worker by registered letter dated 22nd September 2020. The letter and report were returned to the Council on 25th September 2020. On 24th September 2020, the worker emailed the council and confirmed that he received a package from the Council the previous day.  He informed the Council that he did not consent to email, phone calls or post from the employer as he was no longer an employee. (The worker’s seasonal contract with the Council expired on 13th September 2020.)   He advised that if he received any more correspondence from the Council, that he would report them to the ‘Data Protection Agency’ for breach of privacy regulations.

The worker again applied for the post of lifeguard in 2021 was successful in the competition and re-commenced employment as a beach lifeguard on 5th June 2021 with the same employer.   By letter dated 15th June 2021, the Council HR wrote to the worker enclosing the report of Mr. K Investigator.   He was informed that the report’s recommendation was that a final written warning be issued to him and that he had the right to appeal this decision which he did.  This appeal meeting was initially scheduled and then re-scheduled to the 14th of July 2021 as the worker was not available for the initial date.   The worker attended this appeal meeting with his local SIPTU representative. The appeal officer finalised her report on the 28th of July 2021 which agreed with the original decision of the Senior Executive Engineer that a final written warning be issued but did not agree with the reassignment proposal: ‘I am satisfied to endorse the recommendation of Mr. K that (the worker) be issued a final written warning in respect of his behaviour while engaging with a member of the public on a named beach on the 15th of July 2020.   In relation to the recommendation that the worker be reassigned to a different beach in 2021, I do not see any justification or necessity for such an approach.   In the context of the behaviour for which the worker is being disciplined, the location of the incident is irrelevant as the safety of the public should be the foremost concern at all lifeguarded locations.  By registered letter dated 29th July 2021, HR wrote to the worker advising him of the Director’s decision i.e., the sanction of a final written warning was upheld.  The final written warning was enclosed with the letter and the worker was advised that it would be placed on his personnel file and remain active for a period of 12 months. 

In considering this matter, firstly, I am satisfied that the employer was obliged to investigate a complaint made by members of the public.   In terms of the procedural fairness, I note that once the complaint was received the worker was requested to provide a written account of the incident and a formal investigation meeting under the Disciplinary policy was arranged.    I note that details of the complaint were put to the worker, that he was given the opportunity to respond and that he was given the opportunity to avail of the right to be accompanied, and that he participated in the investigation and disciplinary process.  

I note that the result/conclusion of the process was only communicated to the worker after the end of his contract for that summer, but I also note that this was issued to the worker by registered post, and he refused to accept it and returned it to the Council.   There is no dispute that the documents reached him as he emailed the employer to tell them that he had received it and asking them not to resend or contact him again.   The Council accept that the complainant communicated this message to them and made no further contact until he recommenced work with them the following summer in June 2021.   On 15th June 2021 the worker was informed by the Council of the outcome of the formal investigation i.e., that a final written warning would be issued, and he was given a right of appeal in accordance with the Council’s Disciplinary process. The worker availed of this right to appeal on 24th June 2021, but the decision was upheld, and a final written warning issued to the worker on 29th July 2021, he was informed that this warning would remain on his file for 12 months in accordance with section 9.8 of the Council’s Disciplinary procedure.  

The worker in submitting this dispute is seeking that the warning be rescinded and expunged from the workers records and also that compensation be awarded to the worker.

In addition, the worker advised the hearing that he had since submitting his dispute to the WRC been dismissed in circumstances where a further disciplinary matter and associated sanction from September 2021 in combination with the previous final written warning had led to his failing to secure the post of Senior lifeguard for the summer of 2022, in response to an application submitted by him in March 2022.   This took place after the lodging of the current dispute and the worker is seeking reinstatement in that regard.  That dispute and the second disciplinary incident and associated process were not before me and took place post the lodging of the current dispute which was lodged in August 2021.

Having considered all of the circumstances of the dispute, I am satisfied that it was not unreasonable for the Council to resume the disciplinary process once the worker re commenced employment with them again and I note that it was the worker himself who sought to prevent the process from continuing in September 2020.   I also note that once the process was recommenced the worker was given the opportunity to appeal and availed of that opportunity.  I am mindful of the fact that the worker had participated in the process in summer 2020, was aware that there was an outcome from that process and at that time had refused to accept documentation in relation to the outcome of the process stating that his current contract had expired.  In addition, given that the worker is a seasonal summer worker it is clear that there is a limited timescale within which the employer can commence and conclude the disciplinary process and it is not conceivable that the outcome of any such disciplinary process would not carry over to the next season, as to do so would give a worker a ‘clean slate’ as it were, with each new seasonal employment for the same employer.     It thus seems fair and reasonable that the sanction would carry over to the next season in which he was employed by the same employer.    Accordingly, having regard to all of the circumstances of this dispute I do not recommend in favour of the worker.

Having regard to all of the circumstances of this dispute, I do not recommend in favour of the worker for the reasons set out above.