Worker

Employer

Anonymised Parties

A Staff Officer

A County Council

Representatives

  Self represented

MPH Solicitors

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001197

16/03/2023

The Worker was issued with a written warning for communicating certain information directly to members of the County Council Board (who had no remit to examine the information) and for continuing to correspond with the Chief Executive when he was advised to follow the internal grievance or disclosure procedures instead. The Worker sought that the warning be set aside and either an investigation or new disciplinary process commenced as he alleged the procedure set out in the disciplinary policy was not followed.

In 2016 the Employer issued a commitment on staffing rights in order to close out an improper investigation and being the Worker subject of this investigation consented to the close out on the issuing of the commitment. The matter was resolved locally or so the Worker thought.  The Worker alleged that the commitment was issued in bad faith and a stunt was pulled. He alleged the commitment issued for the sole purpose of getting the improper investigation closed out.  This led to a protracted engagement with the Employer resulting, in a 2nd even more improper investigation being commenced and with threats of Disciplinary proceedings issuing unless the Worker backed down. 

 In June 2022 the worker brought the matter to the attention of the Employers Chief Executive and the Cathaoirleach of the County Council and requested an independent investigation. He alleged this resulted in an unfortunate and very negative engagement and HR commenced disciplinary proceedings against the Worker resulting in a Warning Letter being issued on 27th September 2022. This occurred over a month after the Worker had referred the substantive matter and associated matters to the Department of Housing, Local Government and Heritage for examination.

The Worker stated the substance of this dispute is the issuing of the Warning letter and that specific process and how it was conducted at variance to the advised policy and procedure. He advised the submission does not cover the purported reasons behind the decision which he stated will be addressed in another forum.

The Worker’s case was that he believes the Employer bypassed due process and ignored established procedures and only had a casual regard, at best, for the policy and procedures that issued with the Warning letter and that the Employer claimed was the basis on which the Warning Letter issued.  

The Employer, on 16/9/2022, issued a Disciplinary Meeting request and there was no prior indication that this was to issue as no one contacted or spoke to the Worker in the preceding weeks.  This issued exactly a month after the substantive matter referenced above was referred to the Department of Housing, Local Government and Heritage. The Worker was informed by the Chief Executive in writing just three days earlier on 13/09/2022 when he acknowledged the Workers referral to the Department wherein he stated that matters raised are now with the Minister’s Department to address and there was no reference in his letter to the imminent disciplinary process.   The Worker replied to the meeting request declining the meeting date arranged for stated reasons and there was an ongoing email engagement with HR on the request and while awaiting a response to concerns raised the Council proceeded without indication or notice to issue the Warning Letter on 27/09/2022 and gave 10 working days to appeal.  

Arising from the Warning Letter the Worker requested an urgent meeting but was advised that he had effectively missed his chance when all he was doing before agreeing to any meeting was awaiting on answers to concerns raised on the letter requesting the Disciplinary Meeting.   

The Worker offered to facilitate a meeting just two hours before the warning letter issued. In hindsight the Worker believed it was clear that the decision to issue the warning letter was inevitable despite his engagement with HR on the disciplinary meeting request. 

The Workers concerns increased with the issuing of the Warning letter and he requested clarifications on the Warning letter itself which he alleged were ignored or evaded. He concluded that the appeal clock was being run down so he requested an extension of time on the 10 working days given to appeal as he still didn’t know what was the core decision in the warning letter that he was meant to be appealing.  There was no response to the request for the extension of time however he did manage to get confirmation on 3/10/2022 that he was in compliance with the Warning Letter following multiple pleas for clarity on that point.  

Specifically in relation to the Warning Letter and the policy and procedure which issued with it the Worker submitted the following: 

The Warning letter is invalid as it was based on a flawed process as opposed to the Disciplinary Policy and Procedure which was not followed. 

 The result was that he was denied due process, natural justice, the right to reply and the right to appeal the warning letter. 

In relation to clause 9.5 as referenced in the Warning Letter the Council skipped the preceding clauses in particular (but not limited to) : Clause 2 ( fair treatment ) , Clause 7 ( general principals of natural Justice ,fair procedures and impartiality ), Clause 8 ( approach to resolution). The Worker advised there has been no attempt whatsoever at any approach to resolution. 

In addition, under Clause 9 since the disciplinary process was invoked last September the Worker had no discussion formal or informal at any stage with anyone except one phone call on March 2nd, 2023 with HR which proved fruitless. The Council bypassed the roles of his Line Manager and Director of Services that he was entitled to rely on under Clause 9 of the policy / procedure as issued to him. The Worker had requested several times in writing a meeting with HR and his Line Manager and Director of Services to be in attendance so that an explanation can be given on why their important roles under Clause 9 were bypassed. This meeting was not facilitated at the time of the making of his written submission.  

Outside of the request for a meeting with HR and Line Manager and Director of Services to be in attendance, all previous requests for a meeting with HR following the issuing of the Warning letter were either ignored or rebuffed. And as a result, the Worker could not seek any representation for a meeting that had not been facilitated by the Employer. 

While the Employer indicated that the Warning Letter issued was on the advice received from the LGMA , it appeared to the Worker that either no such advice issued from the LGMA or the LGMA issued the advice without being properly informed by the Employer of the context on the substantive issue referenced above and therefore the LGMA would have been operating in a vacuum without all pertinent information. The Worker could not establish which, if either, was the case despite written requests to HR.  

 The purpose of the Workers reference of his dispute to the WRC is to ensure proper policy and procedure is followed and in that regard he requested that the WRC determines that that Warning Letter be deemed invalid as proper policy and procedure were not followed. This will give the option to the Employer to either restart the disciplinary process and follow proper policy & procedure or withdraw from it. If such a determination is not available to the WRC then the Worker stated it is open to the WRC to issue any determination it sees fit. 

The Employer is a Local Authority.  Local Authorities are creatures of statute and operate through the exercise of Reserved Functions (exercised by the Elected Members of the Council) and Executive Functions (exercised by the Chief Executive or his/her duly delegated official).  Industrial Relations and Human Resources issues are an Executive Function, which functions have been delegated from the Chief Executive to officials of the Human Resources Department of the County Council. The Worker is employed as a Senior Staff Officer by the Employer at the Employer’s headquarters.  A copy of the Worker’s Contract of Employment dated 19 December 2005 and the Code of Conduct was provided.

The Submission on behalf of the Employer addressed the warning letter issued to the Worker by the Employer dated 27 September 2022 (“the Warning Letter”) and to the procedures followed prior to and following the issuing of the Warning Letter. The Worker states in his submission “the purpose of this submission is the issuing of the Warning Letter and the specific process and how it was conducted as at variance to the advised policy and procedure”. Any ancillary matters referred to in the Complaint’s correspondence relating to the Worker’s employment or other matters involving the Employer are not being considered by the Employer as part of this complaint

On 16 June 2022 the Worker sent an email to an employee of the Employer relating to his appointment as an Acting Director of Service and this email was also copied to the  Council Cathaoirleach and the Chief Executive of the Employer. This email included confidential employee information relating to the other employee and very serious and disparaging allegations as follows:-“I can only conclude that you have not disclosed to Management what I believe to be, to put it mildly “wrongdoings”…

On 23 June 2022, following the receipt of the email set out iabove the Chief Executive of the Employer wrote to the Worker stating that:

Communication to the Cathaoirleach was inappropriate and this was a matter to be dealt with through the Executive function of the Employer;

In a situation where the Worker has a grievance, the Worker should submit that grievance to the Human Resources department, through the designated process; and

There is no open disciplinary process relating to the Worker.

On 23 June 2023 the Worker again wrote to the Chief Executive and to the Cathaoirleach where he states, in reference to a grievance from 2017/2018,  as follows:-

“Can the threat from Mr X now be withdrawn and should it ever have been  made in the first place, will Mr X issue an apology”

Despite the request from the Employer to direct correspondence to the Human Resources department and to cease from issuing correspondence to the Cathaoirleach, the Worker continued to issue correspondence to the Cathaoirleach and the Chief Executive on the following dates:-

29 June 2023

5 July 2023

8 July 2023

15 July 2023

20 July 2023

These continued acts of insubordination by the Worker were acknowledged by the Employer and in particular by way of letter of 29 June the Employer stated as follows:- “again…. Your communication to the Cathaoirleach and references to the Corporate Policy Group are not appropriate. As per my previous correspondence all staffing matters are an executive function”.

On 20 July the Chief Executive of the Employer wrote to the Worker and stated the following:-“this correspondence is not appropriate for me or the Cathaoirleach…. this and any future correspondence should be addressed to the Head of Human Resources”.

On 20 July, 22 July and 27 July the Worker again issued correspondence beyond the executive of the County Council  to the then new Cathaoirleach, which included confidential and highly hurtful allegations involving other employees of the Employer. This included the following demeaning wording of a colleague:-“you decided to appoint Mr. X as Acting Director of Service despite there being valid grounds to question the suitability of such an appointment”

The Employer stated that if the Worker wished to file a complaint or a grievance in relation to the appointment of a colleague, the confidential grievance process should be followed to protect all parties involved.

Due to the persistent communication against the direct instruction of the Employer, on 29 July, in response to the emails referred to above, the Human Resources Department of the Employer wrote to the Worker and instructed the Worker to direct any correspondence relating to alleged wrongdoings to the Human Resources Department of the Employer. This included the following:-“I would appreciate if you could set out in detail the matters which you wish to raise. On receipt of same, I will respond to you. In that regard, all correspondence relating to these matters should be sent to me only please”

On the 29th of July 2023 the Worker issued an email to the Cathaoirleach and the Chief Executive specifically indicating a desire on the part of the Worker to release confidential and sensitive employee information, beyond the executive of the Employer (in breach of the direction given and GDPR), as follows. “it was unfair of me to circulate Cathaoirleach (Y and Z) and while they now have sight of the competence at management level, it was my mistake not to update all the remaining 26 elected members of the Council”

On 4 August, 9 August and 12 August the Worker continued to write to the Chief Executive of the Employer. This included the following statements: “The attached will have issued to the Department next week (our two month anniversary). As the Ombudsman once said, its not the initial error of judgment or mistake, its the subsequent attempted cover up that needs investigation”

On 12 August Human Resources responded to the email of the same day and confirmed the following:-“Communication from you to the department is a matter for yourself. The Council has no comment to make.”. The Worker subsequently sent an email to Minister Peter Burke. The Chief Executive of the Employer sent a letter to the Worker on 13 September 2022 (in response to being issued with a copy of the correspondence addressed to the Minister) where he stated as follows:- “it will be a matter for the Minister’s department to address your email”    ; and “for the purposes of clarity, in your correspondence you question the payment made….. to a former staff member ….. upon his retirement” I instructed my executive team to examine the matter and I am satisfied that all payments were made… in line with government directions”

Due to the Worker’s insistence to correspond with the Cathaoirleach (who’s function is outside of the Executive of the County Council as per Section 131 of the Local Government Act 2001) and to the Chief Executive, where the Employer specifically instructed him not to do so, for reasons of correct process and to protect the confidentiality of other employees of the Employer, on 16 September 2022 the Employer wrote to the Worker requesting the Worker to attend a disciplinary meeting. This letter stated the time and place of the meeting, the purpose of the meeting and the Worker was invited to be accompanied by a work colleague or Trade Union Representative. A copy of the Employers Disciplinary Policy was enclosed with the letter.

A copy of the Disciplinary Policy was provided. Clause 12 .1 of the Disciplinary Policy  lists various behaviours which constitute serious misconduct. The most relevant of these are taken from that clause and are as follows:-

“12.1 Acts which constitute serious misconduct include, but are not limited to, the following:

Insubordination….

bringing the Council into disrepute…

breach of confidentiality…

deliberate or reckless breach of employee duties under other Council Policies.

This list is not exhaustive”

On 16 September 2022 the Worker wrote to the Employer in response to the request to attend a Disciplinary meeting and included the following statement: “I wish to advise that I will be declining your request to attend the scheduled meeting due to concerns as to my personal welfare , to two previous spurious investigations to which I was subjected , to the ongoing coverup of impropriety, to the stated purpose which I view as an additional threat to that which I have already raised with the Chief Executive and to the likely prejudicial impact on my referral to the Department of the substantive matter.”

On the 20th of September the Employer responded by email to the objection by the Worker to attend the meeting, making it clear that the meeting related only to the items stated in the letter of 16 September 2022 as follows:-“In response to your email correspondence of Friday last, 16 September 2022 and your below email, I wish to confirm that the purpose of our meeting on Thursday is to address the specific matters set out in my letter to you of the same day. The matter in which you wrote to the Ministers office, which was acknowledged by the Chief Executive is entirely separate. We are not considering that matter as part of our meeting with you…. The meeting on Thursday relates specifically to the matters set out in my letter of the 16th of September relating to the email correspondence issued from you in recent weeks. My colleague Ms. XY  will join me at the meeting and, as previously advised, you can bring someone with you to the meeting. The meeting is taking place in accordance with the attached policy and procedure. If you have matters which you wish to raise you can do that at the meeting. Again, I would like to remind you that the Employee Welfare Programme is available to you as is the support of the Employee Welfare Office.r”

On the 21st of September the Worker responded further (in relation to the request by HR to have the  meeting) by email where he proposed alternative wording for a the letter to request the Worker to attend the meeting. It includesthe following wording:-“I wish to reiterate that I don’t find your position that the matters are “entirely separate” to be credible. I would advise that you consult the County Solicitor and the LGMA and then issue a clarification on your position….. I enclose a draft wording for a suggested replacement meeting request for the consideration of HR.”

A disciplinary meeting was scheduled for Thursday the 22nd of September by the Employer. The Worker did not turn up for the meeting. The Employer was not provided with a valid reason why he should not attend the meeting as requested by Human Resources. Thereafter, in line with Clause 9.5 of the Disciplinary Policy and Procedure, the Employer issued the Warning letter. Clause 9.5 states that the Employer can proceed straight to a written warning, where the conduct of an employee warrants such an action. The Employer deemed the behaviour to justify going straight to a written warning. The Warning letter included the following:-“Despite this further and very important direction from the Chief Executive relating to the appropriate manner in which your allegations can be addressed, you sent further correspondence, including but not limited to an email on 22 July, beyond the Executive of the County Council and specifically to the Cathaoirleach. In this email you reference potentially disparaging allegations relating to the recent appointment of the employee to a Director of Service role. Your allegations were shared with personnel of the County Council outside of the Executive thereby placing the confidential nature of these allegations and the protection of the good name of the employee in question at risk. The Human Resources function and all matters relating to employees of the County Council is a function of the Executive in which the elected members have no role.  All employees of the County Council are entitled to confidentiality in any dealings with their employer and your involvement of persons outside of the designated Human Resources personnel of the County Council executive breaches this confidentiality. These acts of insubordination, where you have proceeded to send correspondence in flagrant breach of the grievance policies and procedures set down by the County Council and where you defied three clear directions of the Chief Executive and the Head of Human Resources, is totally unacceptable and is deemed to be misconduct. By your actions you have potentially brought The County Council into disrepute and this is unacceptable. In line with the County Council Disciplinary Policy and Procedures (copy enclosed), the expected work standards have not been achieved by you. Your actions are deemed by the County Council to be misconduct and the purpose of this letter is to provide you with a formal written warning in line with Clause 9.5 of the Disciplinary Policy. Stage 2 of the Disciplinary Policy is being invoked at this time in line with Clause 9.5  as the “conduct… warrants proceeding straight to written warning stage” . Disciplinary action at this level is necessary given the seriousness of the unsatisfactory conduct. This written warning will be placed on your personnel file and will remain active for a period of 12 months. For the purposes of clarity, the unsatisfactory conduct relates specifically to the manner in which you have persistently communicated highly sensitive allegations relating to personnel of the County Council outside of the Executive, and to the Cathaoirleach, despite clear instructions not to do so. Your actions thereby placing the confidential information at the risk of publication where it was shared beyond the Executive. We expect you to cease immediately from communicating in this manner. As outlined previously to you, the secure and confidential grievance process through the Human Resource Department is the appropriate forum to deal with matters relating to your employment. Allegations of any wrongdoing can only be considered by the County Council where they are substantiated through the formal and secure grievance process. Please note that the likely consequence of repeated or further misconduct is a final written warning. You have the right to appeal this decision in writing to Mr. AB  Director Service within 10 working days of the date of this letter.”

On 27, 28 & 29 September , in response to the contents of the Warning Letter the Worker indicated he would not appeal the Warning Letter and he stated the following in emails to the Employer:-“My most recent email was to you alone and I’m obeying the instruction not to contact the Chief Executive and the Cathaoirleach. I have ceased the communication as requested” and “Due to the complete breakdown of trust in your integrity as a colleague … I have no further comment to make” and “I cannot appeal something that has no legal basis”.

Included as part of the response from the Employer to ensure he was advised of options relating to his personal welfare, the Worker was advised as follows:-“I note with concern in relation to your health, please note that the Council’s  Employee Welfare Programme is available to you. You may also wish to consult your own doctor…I sincerely hope that you avail of the supports available to you.”

The Warning Letter included a right to appeal to the Director of Service Mr AB by within 10 working days (being 11 October 2022). The Worker wrote to Mr AB citing a conflict of interest and referencing the separate dealings with the department and looking for an extension of three months within which to make an appeal. The Worker did not elect to appeal the Warning Letter to Mr AB as required.  During the 10 day time period to appeal the decision, The HR Manager, Senior Executive Officer, Human Resources Department had various interactions with the Worker by email and telephone. On 30 September The HR Manager sent an email to the Worker which included the following:-“Please note that I am following the County Council policy which deals with disciplinary matters, a copy of which was shared with you. In line with that policy, you were invited to attend a meeting on the 22nd September 2022. I attended the meeting venue which you did not attend. Five days later, a warning letter issued to you. The warning letter stated that “In line with the County Council Disciplinary Policy and Procedures (copy enclosed), the expected work standards have not been achieved by you. Your actions are deemed by The County Council to be misconduct and the purpose of this letter is to provide you with a formal written warning in line with Clause 9.5 of the Disciplinary Policy. As previously advised, and in line with the policy you can appeal the decision to Mr BB  in the timeframe set out in the letter. With regard to your reference to your health, I again encourage you to contact your own GP. As stated in my email below, supports are available to you and the details are as follows. This is a free and confidential service.

Ms. AB , Professional Counsellor,

Ms. CD, Professional Counsellor”

Following this the Worker was seeking confirmation that he was “in compliance with the Warning Letter”. The HR Manager exchanged emails with the Worker on 3 October which included the following statement from the Worker :“I am grateful for your confirmation that I am in compliance with the Warning Letter. Based on my compliance can you confirm if this closes the process which resulted in the issuing of the warning letter or is there something further that I need to do”

The HR Manager responded as follows: -“as per the policy, the written warning letter will remain on your file for a period of 12 months”. The Worker did not query an appeal, or the process for an appeal, with Human Resources in this exchange. He was specifically advised to appeal the matter to Mr X in the warning letter and this was reaffirmed in the email of 30 September.

The HR Manager phoned the Worker on 3 October, to ensure he understood the process and to determine if he had any questions about the warning letter, or an appeal. A note of the call from The HR Manager which includes reference to his statement that he “appreciated the call” and he stated that it was “good to talk to you”. The HR Manager confirms that the Worker appeared to understand the warning letter and he did not question the appeal process.

Four Months later, in February 2023 the Worker recommenced communication with the HR Manager in relation to the matter. This includes an email from the Employer on 20 February 2023 which stated as follows:-“Hi (Worker)

I refer to your email below and your emails of the 1st, 8th and 10th February 2023. I wish to apologise for my delayed response. I had a family bereavement. I am satisfied that this matter was adequately considered and addressed in line with the processes and procedures set down by the County Council. Please note you were offered an opportunity to submit a grievance in line with our procedures, however a grievance was not submitted by you. Separately, In line with our disciplinary policy you were asked to attend a meeting on 22 September 2022, however you did not attend. We subsequently issued a formal warning letter to you on 27 September 2022 a copy of which I attach.  This letter included an option for an appeal which was not availed of by you. The matter is closed and as advised the warning letter will remain on your file for a period of 12 months. Ms M is the Ethics Registrar and further information is available on the Council’s website.

I would like to remind you that the Employee Assistance Programme is available to you.”

On 1 March 2023 the HR Manager had a telephone conversation with the Worker. The Worker was advised that he can meet the Director of Service and/or his Line Manager at any time. On 8 March the HR Manager confirmed the contents of that call and other matters.  In the email exchanges on 8 March the Worker makes a very serious allegations relating to the Warning Letter as follows:-“ – As Personal Assistant to the Chief Executive can you please bring this email to his attention as I don’t wish that any referral by me directly to the members comes as a surprise to him given their role as set out by the Department. I’ll continue to be available to him until that becomes irrelevant -  You might also advise him that he was misled by x when issuing his correspondence”

The Employer issued a letter to the Worker addressing the Worker’s stated intention to write to the elected members of the Employer potentially releasing confidential information of employees of the Employer and in direct contravention of the Warning Letter. The Elected members of a local authority, do not have a delegated function to consider or deal with internal employee matters of a local authority. This is a function of the executive of a local authority. Section 131 of the Local Government Act 2001 deals with “Reserved Functions” of the elected council of a local authority and it confirms as follows:-(5) For the purposes of this section “function” does not include a function relating to the employees of a local authority or joint body or the direction, supervision, service, remuneration or discipline of such employees or any of them…”

Section 154 of the Local Government Act, 2001, as amended allows the Chief Executive of a Local Authority to delegate his/her functions to an employee of the local authority and, upon such delegation, such person performs such duties in place of the Chief Executive.

The General Data Protection Regulation (GDPR)  is the toughest privacy and security law in the world. It imposes obligations onto organisations anywhere, so long as they target or collect data related to people in the EU. The release of the personal information of employees outside of the executive to the Cathaoirleach is a potential breach of GDPR. The Employer as an employer and data controller under the GDPR, must take action to protect all employees from a possible release of their personal information.

The Employer sets out in its Grievance Policy & Procedure that “The County Council is committed to working to maintain a workplace environment that provides high quality service in an atmosphere of respect, collaboration, openness, safety and equality” it further states that the “[Policy] aims to provide a framework for dealing promptly and fairly with individual employee concerns”. In fairness to all employees of the Employer, this is the correct procedure to be applied when submitting a complaint to Employer. The Worker was invited to do so on many occasions and did not do so.

The Employer has a Protective Disclosures Policy which is available to all employees. It states as follows:- “The Council is committed to ensuring that the culture and work environment are such that any employee/worker is encouraged and supported to report on any issue that may impact adversely on the Council’s ability to deliver a high quality service and to facilitate the disclosure of wrongdoing and the protection of an employee/worker(s) who make such disclosures”. This is the appropriate forum for the disclosure of wrongdoings which are not categorised as grievances.

The Employer has a Disciplinary Policy & Procedure which is available to review by all employees. It was provided to the Employer and it was adhered to and followed by Human Resources prior to issuing the Warning letter.

It was submitted that the Worker is employed in a Senor role at the Employer and as such he is fully aware of the importance of following the correct procedures when submitting a grievance or complaint. These procedures are necessary to operate their business in line with the required regulatory standards and to protect all employees of the Employer. The Employer has a Grievance policy and procedure, a whistleblowing procedure and an ethics registrar all of which are put in place to deal with employee complaints or concerns. The Worker was invited (and instructed where relevant) to follow these procedures.

The Employer was at all times clear to the Worker that complaints must be considered via the appropriate process. The Worker is a senior and experienced employee who is familiar with the importance of processes and procedures. Despite this he did not file a grievance.

The Worker was requested on various occasions to cease from sending confidential employee correspondence to the Cathaoirleach as his role and function is outside the executive of the Employer. The risks associated with this were shared with the employee. Section 131 of the Local Government Act is clear with regard to reserved functions where it states that the Cathaoirleach does not have any function in relation to employee matters of the Employer.

Despite the request to the Worker to write only to HR and/or to follow the grievance process he repeatedly wrote to the Cathaoirleach and the Chief Executive of the Employer. In line with Clause 8 of the Disciplinary Policy & Procedure the Employer made every effort to resolve this matter by pleading with the Worker to cease correspondence with the Cathaoirleach and to follow the correct procedure for dealing with a complaint.

The Worker was invited to a Disciplinary Meeting in line with the Disciplinary Procedure. The purpose of that meeting was to allow the Worker to explain his position, put forward questions and to allow the Employer to engage with him in relation to the matter. He did not attend the meeting without a valid explanation.

Following this and due to the fact that he did not turn up for the Disciplinary Meeting (without explanation) the Warning Letter was issued to the Worker in line with Stage 2 as set out in Clause 9.3 of the Disciplinary Policy. Given the severity of the matter and the compliance (including a GDPR) risk presented to the Council by the release of any sensitive employee information outside of the Executive function of the Employer, the Warning Letter was the appropriate and necessary sanction. The Warning Letter was issued in line with the specific process set down by Disciplinary Policy of the Employer. It is valid for 12 months, and subject to their being no further misconduct relating to it, the Warning Letter will be removed from the Workers file on 27 September 2023.

The Worker did not appeal the Warning Letter. He had every opportunity to do so and the timeline was confirmed to him when engaging with Human Resources after the Warning Letter was issued. He engaged with Mr AB relating to an appeal where he referred to a “conflict” due to the Worker’s correspondence with the Government Minister. This was entirely separate matter, and the Worker was advised of this on several occasions. He looked for confirmation that he was in compliance with the Warning Letter, this was provided by Human Resources by email on 3 October and ultimately the Worker did not appeal the Warning Letter.

In March 2023 the Worker indicated his intention to correspond with the Council members, potentially releasing sensitive employee information outside of the executive of the Employer and again in defiance of the Warning Letter. At the date of the Hearing the Employer has taken no disciplinary action against the Worker in relation to this. The Employer has written to the Worker in relation to this, it hopes that he will desist from any such behaviour, and in the meantime, the Employer is reserving it’s position.

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

The Worker was advised a number of times that if he had a grievance he should follow any of the four procedures available to him. The Worker was advised not to communicate personal information to Members of the County Council who had no role to investigate his allegation. He was advised a number of times in writing not to communicate with the Chief Executive and to address his concerns to the Head of HR. None of the actions of the Employer were to stop the Employee making an allegation, they just advised him on the correct manner to do so and he continually failed to take on board these written instructions. The Employee was issued with written warning for failing to follow these instructions on September 27th 2022 and it is due to expire on September 27th 2023.

In conclusion I see no grounds for accepting the Workers request that the warning be withdrawn and a new investigation or disciplinary process be commenced by the Employer on the following key grounds;

The core of the Employees dispute was to do with a warning he considered without merit and the application of the disciplinary procedure in his case. I have reviewed the Employers Disciplinary Policy and see no breach of the Policy and the Policy states that the Employer can issue a written warning at first instance for serious offences. The Worker has not established that the procedure followed by the Employer was not compatible with the Disciplinary procedure

The Worker, when seeking pre meeting clarification of issues and his attempt to seek alternative time for the disciplinary meeting, attempted to unilaterally amend the disciplinary process and the issues he wished to address could and should have been dealt with at the scheduled meeting. The Worker did not attend the Disciplinary meeting to establish what exactly was the allegation against him (which on review of the documentation issued prior to the meeting was abundantly clear) or to state his case.

The Worker did not appeal the written warning within ten days as required by the policy. He attempted to seek clarifications during this time but these clarifications could have been adequately dealt with at an Appeal Hearing.

The Worker, on two internal occasions failed to defend his position and was seeking a third party, the WRC, to revisit/order an overturn of the sanction issued. There is an obligation on an employee to participate in a disciplinary and appeal process and to defend their position and it is not reasonable, in Industrial relations terms, for an Worker to seek to have a third party do so when they declined to participate in the internal process themselves..

It is important to note, prior to outlining my Recommendations, that the Employer had no issue with any allegations being raised by the Worker regarding alleged improper conduct or an action that was alleged as not being legal. The Employers main concern was that these allegations should be pursued and investigated through the proper channel, the Executive, through any of the four procedures available to Employees.  Also, while not the subject of this dispute, any person who allegations are made against are entitled to due and fair process to have any allegation against them properly investigated.

I note that the Worker has agreed not to correspond with the Chief Executive, the Cathaoirleach or Members of the County Council in relation to any personal information, allegations or disclosures regarding other members or former members of staff of the County Council and I recommend he continue with this assurance and I recommend should the Worker have any future grievance that he pursues it through any of the four procedures available to him.

I recommend that the Worker fully consider the implications of disclosing allegations of a personal nature relating to other current or former members of staff of the Council under GDPR and possible consequences for the Worker were these allegations not to prove accurate.

The Worker contested that he has not made any protected disclosures. The allegations raised by the Worker to the Chief Executive in emails between 31st May 2023 and 19th June 2023 have now been submitted by the Employer for consideration under the Protected Disclosure Act (and were not the subject of this Hearing and were not versed at the Hearing) and I recommend, as is the Employers intention, to consider these allegations under the Protected Disclosures Act.

I see no justification to recommend a new investigation or that the disciplinary action be overturned.

I find in favour of the Employer.

Appeal of written warning