Worker

Employer

Anonymised Parties

Cleaner

Contract Cleaners

Representatives

Mr. Marius Marosan

Self-Represented

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-00047490

03/12/2021

On 3rd December 2021, the Worker referred a dispute within the meaning of the Industrial Relations Acts to the Commission. Herein, she alleged that an unfair disciplinary sanction was imposed upon her. By subsequent submission, the Employer denied this allegation, stating that the disciplinary sanction was warranted and proportionate having regard to the circumstances.

A hearing in relation to this matter was convened for, and finalized on, 15th November 2022. Both parties issued submissions in advance of this hearing. These submissions were expanded upon at the hearing and contested by the opposing side. No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

The Worker submitted that she was engaged as a cleaner at a third-party site. On the morning of 12th July 2021, the Worker began to feel unwell. Following her shift, the Worker took an antigen test that confirmed she was positive for Covid-19. Following the same, the Worker completed a ten-day isolation period. This period commenced from 13th July 2021 and was extended to 26th July 2021 on the grounds of certified sick leave. On 28th July 2021, the third-party client informed the Employer that they were concerned that the Worker had attended work whilst a family member that lived with the Worker was absent due to Covid-19 (this individual was an employee of the third party). Following an investigative procedure, the Worker was issued with a final written warning for attendance at work in contravention of the Respondent’s guidelines regarding self-isolation. The Worker was also removed from the third-party site.

By submission, the Worker stated that the imposition of the disciplinary penalty was fundamentally unfair. She stated that at all times she was incompliance with the HSE guidelines regarding self-isolation. Notwithstanding the foregoing, she submitted that the penalty imposed was too severe given the alleged wrong-doing. The Worker further submitted that her previous good conduct and long service was not taken into account. Finally, the Worker submitted that the removal from the third party site was a further, disproportionate, sanction in respect of the foregoing.

In addition to the foregoing, the Worker’s representative took issue with the procedural aspect of the disciplinary process. In particular, he raised concerns regarding the appeal of the matter. In particular, he took issue with the potential that a sanction could, potentially, be increased following an appeal by a Worker. He submitted that this was fundamentally unfair and served to prevent Workers from engaging the appeals procedure.

The Employer submitted that they provide cleaning services to multiple third parties. Given the nature of their business, the Employer is extremely vigilant regarding the potential spread of the Covid-19 virus from one business to another. As a consequence of the foregoing, their internal rules impose restrictions over and above those suggested by the HSE in relation to the containment of the virus. In particular, during the relevant period for the purposes of the present complaint the Employer’s rules stipulated that an employee cannot attend work if they have any symptoms of Covid-19 and cannot attend work if a person in their household exhibits any symptoms of Covid-19 or is self-isolating in respect of the same.

On 12th July 2021, the Worker developed symptoms of Covid-19 during a shift. The Worker did not notify her supervisor of this development in contravention of the Employer’s policy in this regard. Thereafter, the Worker attended work whilst a member of her household was self-isolating on foot of a positive Covid-19 test. This represented a further breach of the Employer’s internal procedures.

Following an investigation and disciplinary process, the Employer issued the Worker with a final written warning in respect of these issues. In justifying this sanction, the Employer submitted that the Worker had breached the Employer’s internal policy regarding the spread of Covid-19. They stated that the Worker, by her actions, potentially placed her colleagues and the Employer’s clients at risk of contracting the virus. In addition to the same, they submitted that the third-party client stated that they did not wish for the Worker to be assigned to their premises thereafter. On foot of the same, alternative roles were provided on an ongoing basis.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The present dispute involves the imposition of the sanction of a final written warning on the Worker in accordance with the Respondent’s internal disciplinary policy. The Worker has alleged that the sanction was disproportionate and unfair, whilst the Employer has maintained that the sanction was appropriate in the circumstances.

Regarding the first point, it is submitted that the Complainant’s actions were compliant with the contemporaneous HSE guidelines. Notwithstanding the same, the Employer has submitted that their own internal procedures apply more rigorous restrictions on their employees. Having heard the Respondent’s submission in this regard, it clear that the rationale for the same is entirely reasonable. The nature of the Employer’s business is that their employees travel from office to office to carry out their duties. During the height of the Covid restrictions they were one of the few industries to do so. Following from the same, the Employer had to particularly vigilant against their employees inadvertently spreading the virus from one business to another. On foot of the same, it is apparent that the Employer introduced strict rules over and above those suggested by the HSE in respect of the minimisation of the risk of contracting and spreading the virus. The Worker may well have been in compliance with the HSE policy in respect of the same, but it is apparent that she breached the Respondent’s own internal policy. Having regard to the same, the imposition of a disciplinary sanction was not inappropriate in the circumstances.

The Worker has also taken issue with the severity of the sanction imposed, stating that final written warning was far too severe in the circumstances. In this regard, I am conscious that the Worker remains a long-standing employee of the Employer and was not subject to any disciplinary sanction prior to the instant matter. Nonetheless, I am also conscious of the Respondent’s submission regarding their responsibilities regarding the spread of Covid-19 and the consequent requirement to view breaches of their policy in the serious manner. While it is apparent that the sanction imposed was certainly on the higher end of the scale, the Employer’s position in this regard is not unreasonable. In such circumstances I find no reason to interfere with the level of the sanction imposed, particularly in circumstances whereby the same had expired by the date of the hearing.

The Worker took further issue with the fact that she was removed from the third-party site, stating that the same constituted a further form of sanction arising from the process. In this regard, the Employer submitted that the third party stated that the Worker should be removed from their site and revoked her security access in relation to the same. The Worker is correct in her submission that this represented a detrimental development imposed without any form of due process. Unfortunately, however, such decisions are made by the Employer’s client and ultimately they cannot force a reversal of the same. Having regard to the same, while the unilateral removal of the Worker was unfair, the fault for the same does not rest with the Employer.

Finally, the Worker’s representative took issue with the Employer’s internal policy in respect of the appeals. In particular, he submitted that the Employer’s ability to increase a disciplinary sanction on appeal acted as a deterrent to employees issuing such appeals. Two matters arise in respect of the same, firstly the sanction imposed was not increased on appeal, rendering the matter moot. Secondly, it is apparent that submission represents a matter that would potentially affect the entirely of the Employer’s workforce. In this regard I find that it would be inappropriate to make a recommendation in this regard.

Having regard to the accumulation of the foregoing points, I do not recommend in favour of the Worker in respect of this dispute. Notwithstanding the same, having considered the relevant facts of this dispute apparent that the Worker is a dedicated employee, held in high regard by the Employer. In circumstances whereby the disciplinary sanction in question has expired, the matter can be drawn to a close and the parties can continue their successful working relationship.

Covid-19 restrictions, Cleaner