ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00034400
Parties:
| Worker | Employer |
Anonymised Parties | A Worker | An Employer |
Representatives | Sean Heading, Connect Trade Union | David Green, Employee Relations Department |
Dispute:
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-00045440 | 29/07/2021 |
Workplace Relations Commission Adjudication Officer: Brid Deering
Date of Hearing: 08/09/2022
Procedure:
In accordance with section 13 of the Industrial Relations Act 1969, following the referral of the dispute to me by the Director General, I investigated into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute. A remote hearing was held on 8th September 2022. Comprehensive written submissions were presented by both parties.
Background:
A complaint was made against the worker in 2019. An independent investigation into the complaint took place. The worker did not accept the outcome of the investigation. He raised a grievance in relation to the investigation process which was upheld at Stage 3 of the Grievance Procedure. As a result, no further action was taken by the employer on the matter. The worker seeks written confirmation that the records relating to the complaint and subsequent investigation have been expunged from his personnel file and written confirmation that these records will not be relied upon in the future. |
Summary of Worker’s Case:
The worker accepts that it is a matter for the employer to retain a record of the complaint and the investigation into the complaint separate to the worker’s personnel file. However, the worker seeks written confirmation in the following words: “that any records of the complaint and any subsequent investigation are expunged from the worker’s personnel file” (like the wording used by the Labour Court in LCR19177). The letter to the worker dated 20th August 2020 indicates that further action may be taken if incidents of this nature occur in the future. The worker seeks written confirmation that the matter will not be relied on or used against the worker in the future. The worker expressed concern that the records on the investigation file may be placed back on his personnel file in the future. |
Summary of Employer’s Case:
A record of the complaint and investigation is held on a separate investigation file. This cannot be expunged as the worker was not a sole party in the complaint and investigation of that complaint. It was confirmed to the union by email dated 19th August 2021 that no record of the complaint or the subsequent investigation is recorded on the worker’s personnel file. The letter to the worker dated 20th August 2020 does not indicate that the record may be relied on in the future. |
Conclusions:
In conducting my investigation, I have considered the oral and written submissions presented to me by the parties.
A complaint was made against the worker and an investigation into that complaint took place. A record of the complaint and the investigation is held by the employer on an investigation file.
In relation to the worker’s personnel file, the employer has already confirmed in writing (by email to the union dated 19th August 2021) that there is no record of the complaint and investigation on the worker’s personnel file. The employer cannot expunge from the personnel file records that do not exist on said file.
I accept the worker’s submission that the letter from the HR Manager dated 20th August 2020 could be construed as threatening further action if incidents of this nature occur in the future. I agree with the worker that the paragraph containing that sentence cannot be read in isolation from the paragraphs which precede it. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation to the parties to the dispute setting forth my opinion on the merits of the dispute.
I recommend that the worker accepts the employer’s written assurance (as per the email dated 19th August 2021) that no records of the complaint and investigation are held on his personnel file. The records on the investigation file are not to be placed back on the personnel file in the future.
I recommend that under no circumstances should the complaint and any records relating thereto (which are held on a separate investigation file) be used against the worker in the future. Confirmation of this should be sent in writing to the worker within 14 days of the date of this recommendation.
Dated: 30/09/2022
Workplace Relations Commission Adjudication Officer: Brid Deering
Key Words:
Investigation. Expunge records. |