Complainant

Respondent

Anonymised Parties

{A Security Attendant)

{An Employer}

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-00052327-001

21/08/2022

The worker referred his dispute to the Director General of the WRC on the 21/08/2022 in relation to the matter of the imposition of a verbal warning penalisation or sanction following allegations of misconduct by the employer. The dispute arises in circumstances where the worker was subject to a disciplinary process and issued with a written warning which was reduced to a verbal warning on appeal.  The worker maintains that both the process and sanction were unfair and although the warning has since expired, he seeks to have it expunged from his employment record / file. The employer contends that the investigation and disciplinary process adopted, and consequent sanction was justified in the circumstances of the worker leaving his post without prior permission from any member of management.

At the hearing on 09 March 2023, the workers union official and representative (union official) outlined the background circumstances giving rise to this dispute. The union official submits that the worker referred their dispute to the Director General of the WRC in relation to the matter of the imposition of a verbal warning penalisation or sanction on the worker following allegations of misconduct by the employer.

The union official told the hearing that the worker is a loyal and long serving member in his place of employment and that he works as a Grade Security Staff. The union official further said that the worker up until this incident had an unblemished record since his commencement in the role dating back almost 26 years ago. The worker is an elected shop steward union employee representative of his peers and also the secretary of numerous union state and county-based committees.

As the worker is the employee representative for union members in his place of employment, the union official advised the hearing that the worker is the first point of contact for over 70 union members whom would often call upon him to resolve a number of individual and collective issues, requests for information, and provide updates on national pay issues and advice on internal industrial relations matters in his place of employment.

The union official further submits that in early June 2022, the worker was approached by a fellow union member in his place of employment with a request that the worker arrange a meeting with two issues the member would like to raise with the union official representative.

The workers union official further submits that the worker advised his fellow union member that he would contact the union official and would arrange an on-site meeting between the member, himself, and the union official. Subsequently the worker contacted the union official and a date and time of 22 June 2022 at 9.45am in their place of employment for the meeting was agreed.

The union official advised the hearing on this point that on the 22 June 2022, he notified the employer of his request for facilitation to be on-site for a meeting at 9.45am. The union official explained that he arrived on site at approximately 9.45am and as per usual the first point of contact was to consult with the worker.

The union official submits that the worker in this moment then proceeded to notify his line manager or "senior", who was in the room and who had acknowledged the union official, of the agreed intention to meet with the member in question as per and in-line with agreed industrial relations.

The union official further submitted that himself and the worker proceeded to try to contact the union member in question through internal communications and by way of text messages to notify him that they were awaiting his arrival for the requested meeting. While awaiting the arrival of the member the union official submitted that he and the worker discussed local IR issues, dates for meetings and upcoming National Pay talks.

In this moment, the union official informed the hearing that a "Senior" (supervisor) entered the room again, wherein the union official again was acknowledged, to discuss an operational issue with the worker.

The union official submitted on this point that at 10.15am, a second senior entered the room, again acknowledging the union official and also engaging in conversation with the worker.

At 10.25am and following discussions on further local, regional and national IR issues, the union official submitted that a decision was made between him and the worker that the meeting would have to be rescheduled as the union member in question that had requested the meeting had still not responded to any communications they attempted to make with him and at this point, the union member was still not present.

Upon completion of the meeting, the union official also submitted that the worker then proceeded to take his break, in-line with the employer’s breaks system and went to the canteen in his employer’s place of work for his tea break.

On returning to his post after his break the union official informed the hearing that the worker was called for by the senior staff member and informed that by same "that he was to be written up" and will be looking at a warning of some nature as a result of leaving his post.

The union official submitted that the worker was dismayed by the interaction as (l) the senior in question new the worker was in attendance at a meeting with the union official and (2) correspondence was issued to the employer which notified management that the union official would be on-site.

It is in this context the union official notes that the worker then proceeded to contact him to inform him of the events that unfolded upon his departure after the arranged meeting.

In response, the union official submitted that he in turn contacted the HR department of the workers employer on the matter. On this point, the union official advised the hearing that it was pointed out quite early to the employer that the position taken by the senior and by the employer’s operations management was out of sync with the Labour Relations Commission Code of Practice on the Duties & Responsibilities of Employee Representatives and the Protections afforded them by their Employers.

The union official highlighted at the hearing that under the code, employee representatives who carry out their duties and responsibilities in accordance with paragraph 3 of the Code should not

a)           be dismissed or suffer any unfavourable change in their conditions of employment or unfair treatment, including selection for redundancy, because of their status or activities as employee representatives or

b)           suffer any action prejudicial to their employment because of their status or activities as employee representatives, without prior consultation taking place between the management and the relevant trade union.

The union official also stated that under Section 7 of this Code is without prejudice to the provisions of the Unfair Dismissals Acts 1977 and 1991

Where an employer considers that an employee representative has acted or is acting beyond the usual authority and functions of an employee representative as set out in paragraph 3 or in a manner which is damaging to the undertaking or establishment, the employer should, in the first instance, take the matter up with the employee representative concerned and failing satisfaction at that level with his/her trade union.

It is in this context and with reference to the above, the union official submits that the employer did not in the first instance, attempt to take the matter up with the employee representative concerned as in the worker and failing satisfaction at that level should they have attempted to engage with the worker, the union official submits they made no attempt to engage with him or the trade union he represents either.

The workers union official told the hearing that any miscommunication or misunderstanding or fault in relation to his arranged meeting with the worker and the union member was of his doing and the worker in this case should not have been punished as a result. On this point, the union official added that the matter could have been resolved informally before moving to an investigation and the eventual disciplining of the worker could have been avoided.

In this regard, the union official informed the hearing that the worker was invited to attend a disciplinary hearing and through which processes and outcome, the worker received a written warning. The union official noted that the worker appealed this decision to his HR department setting out that no sanction should have been forthcoming.

The appeal was conducted by a HR Partner of the employer, in August 2022 whom downgraded the sanction of the worker to a verbal warning.

The workers representative submitted that he as the union official and the worker confirmed in writing to the employer that the appeal decision was incorrect and that in-line with codes of practice no sanction should have been forthcoming. It is in this context that the union official and the worker outlined to the employer that they intended to refer the matter to the WRC Adjudication services.

Subsequently to this the workers representative submitted that separate to this complaint the worker was issued with a second warning on a separate matter, which is itself in the appeals processes which has increased the worker current sanction on file to a "written warning". The current situation stemmed from the wholly incorrect decision by the employer due to imposing a "verbal warning" for a matter that would be of a routine nature for a local union employee representative.

Worker’s Position:

The union official submits that it is the unions position on behalf of the worker that the original decision to take disciplinary action against the worker was incorrect, and that the matter could have been addressed informally or through agreed IR meetings on industrial relations matters. The union official further submits that this caused undue stress on the worker and has led to a deterioration in industrial relations, with local reps feeling that union activity is being undermined despite the long proud union activism tradition at this particular place of employment.

While the union official submitted that relations have improved as of late between the workers union with the employer, the issue regarding the worker receiving a sanction for what they believe could have been dealt with informally has still not been resolved and it is in this context they submit the Adjudication officer to make a recommendation on the matter.

In its closing remarks, the union official submits that they and the worker are seeking that the Adjudication Officer make a recommendation in the workers favour to completely remove the verbal warning and the ramification of same from the workers file with immediate effect.

The employer submits that the dispute concerns an appeal by the worker, Security Attendant against the issuing of a verbal warning as a result of leaving his post without prior permission from any member of management.

The employer also submits that the investigation and disciplinary process adopted, and consequent sanction was justified in the circumstances.

The employer informed the hearing that on the 22 June 2022, the Worker was rostered to attend work at 09.00am and was assigned to the badge room, which the employer notes is a high security' area within the premises.

One of the badge room's key functions is to control contractors, visitors, and staff entering in and out through the staff entrance.

The position the employer puts forward is that the worker attended a meeting at 09:15am without any prior permission and that he subsequently left his post at 10.23am without notifying any member of management.

The employer advised the hearing that it takes such matters very seriously and submits that it is a breach of the provisions of the jointly agreed (Employer/Union) standard operating procedure (SOP) 17, which is fundamental to the security operations in the employer’s place of work to ensure the security of many valuable items it has in possession which are on public view.

In this regard, the employer informed the hearing that under standard operating procedure (SOP) 17 a staff member “may not leave their area of responsibility during working hours for any reason without obtaining the prior permission of their Security Supervisor or in his/her absence the Security Supervisor on duty. Rooms must never be left unattended under any circumstances including in the event of the non-arrival of a replacement”.

The employer also submits that while the union official has argued that he notified the Head of Operations and also cc'd the Security and Safety Manager of his request that morning for facilitation to be on-site for a meeting at 09.45am with a different union member, there was no request from him to also have the employee trade union representative as in the worker in attendance at the meeting, and no such request was received by HR department either.

The employer noted on this point that the email request was sent by the union official at 09.26am which only afforded the employer 19 minutes notice.

Given the serious nature of the workers behaviour and the breach that he committed, the employer told the hearing the worker was invited to a disciplinary hearing on the 04 July 2022 at which he was accompanied by his trade union representative.

Following this meeting and after careful consideration of all the issues, the employer explained that the Security and Safety Manager, came to the conclusion that the worker left his post without any prior permission from his supervisor and that it was a very serious breach of Standard Operating Procedure (SOP) no.17. 

As a result of this conclusion, the employer told the hearing that the worker was issued with a written warning under the employer’s disciplinary procedure. The employer further told the hearing that the worker appealed this decision, and an internal appeal hearing took place on the 25 July 2022.

Following consideration of the grounds of the workers appeal, the employer submitted that the Senior HR Partner, concluded that there was substantive evidence to support the written warning sanction, and noted that the worker did not deny that he left his assigned security post without the appropriate authorisation.

Following the Senior HR Partners review of the appeal, the employer further submitted that the written warning was reduced to an oral warning. This decision the Employer explained was made in consideration of the workers service record up until that date, his position as atrade union representative for the fellow trade union members in his place of employment and also in the interest of maintaining good industrial relations.           

Employer’s Position

In its closing remarks, the Employer submits that the worker has admitted that he left his post without prior permission. The Employer further submits that this is viewed as a very serious breach of the employer’s security procedures. The Employer also believes that the reduced sanction of an oral warning, following his appeal, was more than fair and requests that the Adjudicator upholds the employer’s decision.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. Both parties provided written submissions and presented these at the hearing in relation to this dispute.

The dispute before me is in relation to the matter of the imposition of a verbal warning penalisation or sanction on the worker following allegations of misconduct by the employer.

The dispute arises in circumstances where the worker was subject to a disciplinary process and issued with a written warning which was reduced to a verbal warning on appeal.  The worker maintains that both the process and sanction were unfair and although the warning has since expired, the worker seeks to have it expunged from his employment record / file.

The employer contends that the investigation and disciplinary process adopted, and consequent sanction was justified in the circumstances of the worker leaving his post without prior permission from any member of management.

At the hearing, it was agreed by both parties that while at the time of the dispute, relations between both parties had become strained, an agreement and acknowledgment was made by both parties that, since the dispute there has been an overall improvement in employee employer relations and communications going forward.

However, the matter of the imposition of a verbal warning penalisation or sanction on the worker following allegations of misconduct by the employer remains a matter of dispute and under Section 13 of the Industrial Relations Acts, 1969, I am required to make a recommendation in relation to the dispute.

In this regard, the function of the WRC Adjudication Officer is not to substitute its views for those involved in the process but rather to establish if the procedures adopted by the employer conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.

Having examined the investigation and consequent disciplinary process in question, I cannot be satisfied that the employer conformed to the generally accepted standard of fairness and objectivity that would normally be used in a case such as this.

Firstly, I accept the point of the employer that the worker as set out in Standard Operating Procedure (SOP) no.17 should not have left their area of responsibility.

I also accept that it was not ideal in how the union official representative went about notifying the employer at such short notice of the meeting. I also note that the workers union official acknowledged at the hearing that the fault in this regard fell with him as opposed to the worker.

However, I note in this regard that it was not disputed by the employer at the hearing that on different occasions where the employer had sought union officials and or the employee union representative engagement and attendance at the employer’s offices on worker/employer related matters at short notice, a more informal approach was taken without any ramifications for the employer, union official or employee union representative involved.

I further note from the employer’s submission that in the unions official request to attend the office by way of email there was no request from him to also have the employee trade union representative in attendance at the meeting, and no such request was received by HR department either.

Notwithstanding this, It is also important to note that the worker this dispute relates to is the trade union representative for the workers and given the potential ramifications of disciplinary sanction for the employee leaving his post without prior permission, as a matter of basic fair procedures, as set out in the Labour Relations Commission Code of Practice on the Duties & Responsibilities of Employee Representatives and the Protections afforded them by their Employers, the employer should have first and foremost attempted to resolve the matter informally with the worker or failing satisfaction at that level with the workers official  trade union before the disciplinary process commenced.

While I have noted and taken into consideration the employer’s position, that the worker should not have attended a meeting without any prior permission and that he subsequently left his post without very little if any notice provided to any member of management, I am also conscious that Section 7 of the Labour Relations Commission Code of Practice on the Duties & Responsibilities of Employee Representatives and the Protections afforded them by their Employers without prejudice to the provisions of the Unfair Dismissals Acts 1977 and 1991  states;

‘’Where an employer considers that an employee representative has acted or is acting beyond the usual authority and functions of an employee representative as set out in paragraph 3 or in a manner which is damaging to the undertaking or establishment, the employer should, in the first instance, take the matter up with the employee representative concerned and failing satisfaction at that level with his/her trade union’’.

It is in this context that I am not satisfied that the employer genuinely attempted to raise the matter with the employee representative or failing satisfaction at that level with his official trade union beforehand.

In arriving at my recommendation, I am also conscious of the workers length of service and unblemished record prior to this dispute. I am also conscious of the potential significant reputational implications for the good name of the worker.

Section 13 of the Industrial Relations Acts 1969 requires that I make a recommendation in relation to the dispute.  Arising from the aforesaid, I recommend that any documentation pertaining to the verbal warning be expunged from the worker’s employment file.  Going forward and with a view to avoiding similar difficulties arising, should a similar dispute arise in the future, I recommend the employer attempt to engage in the first instance with the employee representative or failing satisfaction at that level with the official trade union representative before the commencement of an investigation / disciplinary procedure and process as set out in the Labour Relations Commission Code of Practice on the Duties & Responsibilities of Employee Representatives and the Protections afforded them by their Employers.

Industrial dispute – investigation / disciplinary process