Complainant

Respondent

Anonymised Parties

A Deputy Manager

A Public Body

Representatives

Jay Power SIPTU

Hannah O'Farrell Arthur Cox

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act

CA- 00040252

5/10/2020

The Complainant is a long serving employee with the Respondent, having commenced employment in 2008.  The Complainant contended that in early June 2020, during the COVID crisis, there were issues pertaining to certification of livestock, that the Complainant had sought clarification from two other members of staff.  He contended that he sought information solely on the certification process in light of changes to the operational running of the Quality Assured Scheme due to COVID-19 and that he was unfairly subjected to an investigation, a disciplinary process and disciplinary sanction. 

The Complainant contended that the decision of the disciplinary process was both wrong and disproportionate and has denied him the opportunity of career progression since its implementation.  In that context, the Complainant sought that his complaint be upheld and that the sanction be overturned and his personal records amended to reflect that position.

The Respondent is a Government Department who confirmed that the Complainant was an employee who had commenced employment with the organisation in 2008.  The Respondent contended that a detailed investigation was conducted by an independent third-party investigator, following referral of a complaint in relation to the Complainants’ actions.  The Respondent contended that the sanctions imposed, as a result of the disciplinary investigation and subsequent disciplinary process, was entirely appropriate and was indeed lenient in the circumstances where the misconduct found by the investigation was extremely serious in nature. 

The Complainant submitted that he was a long and loyal serving member of the Respondent staff with an unblemished record since the start of his employment.  He submitted that in early June 2020, during the COVID crisis, there were issues pertaining to “certification of livestock”, and that the Complainant had sought clarification in relation to these matters from two other staff members.  The Complainant submitted that he had sought information solely on the “certification process” in light of changes to the operational running of the Quality Assurance Schemes due to COVID-19.  The Complainant submitted that he wanted to clearly communicate that he did not make any request for anything to be backdated as the allegation against him suggested and that furthermore there would be no purpose in him doing so, as the number of days that animals spend on a certified farm is not a requirement of the Quality Payment Scheme. 

In July 2020 the Complainant was notified that the Respondent was commencing an investigation against him under the Respondent Grievance Policy and Procedures for an alleged breach of their code of conduct.  The Complainant submitted that he was completely shocked at this, as at no stage had he done anything untoward or outside of the Respondent protocols.  He confirmed that the investigation was conducted by an external investigator at the behest of the Respondent and again he submitted that he was surprised and upset that there would be an investigation pursuant to a breach of the Respondents’ code of conduct, when all he had been doing was seeking information and clarification on changes to the operation of the Quality Assurance Schemes in light of COVID-19.  He submitted that he was a lapsed member of the scheme and that he sought that information from Mr MH and Ms DR who worked in the Quality Assurance Division.

The Complainant submitted that he sought information and advice from Mr H around the certification process as he was the manager in relation to that Assurance Scheme and that after doing so a remote audit was listed on the system on the 18th June for the Complainant.  He submitted that the actions linked to the remote audit were undertaken and documented as appropriate and uploaded to the audit portal by the Complainant.  The Complainant submitted that Mr H advised the Complainant to contact Ms R if he had any further questions on the certification process under the COVID-19 guidelines and he further submitted that on the 2nd July 2020 he was notified that his remote audit was successful and received confirmation that he was a certified Quality Assured member of the scheme after the audit was verified by the certification committee. 

The Complainant contended that he could not have benefitted from any alleged backdating after a farm holding had become a certified quality assured member.  He outlined a number of factors that are considered before a farm holder is eligible for an in-spec bonus as follows:

·        Animals come from certified farm at point of slaughter

·        Maximum of four farm residences

·        Age criteria

·        Animals spend at least 60 days on final farm

·        Confirmation grades and fat scores

The Complainant submitted that the producers must record animal births and stock traded on the department website for primary producers and that primary meat export plants have access to that database to identify if stock being marketed meets the 60 days on the final farm and the age criteria and the movement history in order to meet the bonus eligibility criteria. 

The Complainant submitted that his herd profile on the 22nd July 2020 showed that 55 animals were held on his holding on that date and that all these animals were moved into his holding on the 31st May 2019.  The Complainant submitted that these records used by the meat export plant shows that the Complainants’ animals were in his herd for approximately 13 months and that the criteria used by the industry around residency states that animals must be in that last holding for 60 days.  The Complainants’ records show that his animals were resident on his holding for a far greater period than 60 days when he became a certified member of the scheme on the 2nd July 2020.  The Complainant submitted that there was some ambiguity in the understanding of the criteria that applied and that this was demonstrated in an extract from the interview with Mr MM who was a retired Director of the Quality Assurance Scheme. 

The Complainant further submitted that the interview was carried out by the independent investigator and that it highlights ambiguity within the evidence provided.  The Complainant submitted that animals must be on the last farm that is registered with the scheme for at least 60 days and Mr M referred to this rule as being 70 days in his interview.  He submitted that the criteria was changed in September 2019 as part of the Irish sector agreement from 70 days to 60 days.  The Complainant submitted that the financial benefit as referred to by Mr M is not a QA bonus, it is an in-spec bonus.  The Complainant submitted that additionally Mr M stated that “animals must be on a QA farm for 70 days”.  He submitted that this particular sentence was ambiguous and could suggest that animals come from a holding that has been certified for 70 days. However, the conditions of the Quality Payment Scheme as set out by Meat Industry Ireland and backed up by Mr B, shows that animals can come from a holding that is certified at the time of slaughter, with producers demonstrating that animals were held for at least 60 days on the last farm prior to slaughter through the relevant departmental database.  The Complainant further submitted that other conditions outlined above must also be met in order to be eligible for an in-spec bonus. 

The Complainant submitted that the main crux of the investigation into the Complainants’ alleged breaches of the code of conduct related to the Respondents’ position on residency and the date from when certification counts.  The Complainant submitted that he never asked for the certification date to be backdated and also showed that there were significant amounts of ambiguity around how certain rules are applied and interpreted.  The Complainant submitted that the Respondent acknowledged that there was ambiguity around certain rules for the scheme and how they are interpreted and referred to the outline of same in an extract from the interview conducted as part of the investigation with Mr H.  The Complainant submitted that despite this it would appear that the Respondent interpretation is still at odds with the guidelines set out under the Quality Payment Scheme where Mr H stated that if “certification had not been in place at least 70 days prior to slaughter” this would be a non-compliance.  The Complainant reiterated that the rules of the quality scheme state that to quality for “in-spec”, the animals must come from a certified farm at the time when animals are slaughtered and they must have spent their last 60 days on that farm. 

The Complainant submitted that he was trying to become a QA member back in June 2020 and that the auditing process had changed and moved to a remote mechanism in light of COVID-19 restrictions.  He submitted that, as such, he was seeking guidance and advice from people responsible for the scheme, Mr H initially and then Ms R, after Mr H advised him to contact her.  In addition, the Complainant submitted that the fact that he had no benefit to derive from the alleged attempt at backdating his certification was not factored into the investigation or the Respondents’ decision to uphold the allegations against him.  He submitted that the sanction given by the Respondent was unnecessary and subject to incorrect interpretation of rules around the Quality Payment Scheme.  He submitted that notwithstanding the fact that his trade union representatives appealed the decision he felt that his exemplary work record for the Respondent, plus the fact that he had no previous disciplinary record, should have been factored in to any decision on sanction.  The Complainant submitted that the final written warning to be kept on file for a period of 24 months is way above the appropriate response based on the evidence provided and that his exemplary record should have been factored in to any decision on sanction.  The Complainant submitted that SIPTU appealed the decision through the internal procedures. 

The Complainant and his representative submitted that they have been quite clear and consistent throughout the investigation process against the Complainant, that at no stage had the Complainant sought to influence anybody with regard to decisions on certification of animals and that this was confirmed by correspondence between the Complainant and Ms R.  The Complainant was solely trying to ascertain information, especially as the scheme was transitional from a physical to remote audit.  The Complainant submitted that at no stage did Mr H or Mr R state that they found the line of questioning to be uncomfortable and in fact they advised the Complainant to take the matter up with alternate employees within the Respondent organisation.  The trade union representative submitted that the position that the Respondent had taken seriously erred in their decision to impose a two-year full and final written warning on the Complainant and that the final appeal by the union on behalf of the Complainant set out that the decision taken was wrong and that the sanction imposed was wholly disproportionate.  In conclusion, the Complainant submitted that throughout the investigation and the appeals process, the Complainant and his trade union representative consistently highlighted the innocence of the Complainant vis a vis the alleged accusation.  They pointed out that the Complainant was solely seeking to ascertain the most correct and up to date information on the certification of animals and that he was a lapsed member.  The Complainant submitted that it should also be remembered that this was during a time of extreme upheaval and disturbance with COVID pandemic restrictions in place.  The Complainant submitted that he and his trade union representative engaged with the investigation proactively to clear his good name and standing, not only with the Respondent, but within the small farming community in Ireland.  The trade union had highlighted with the Respondent, the shortcomings of their system of certification of animals and the broad lack of local knowledge.  The Complainant pointed out that trying to ascertain information through questioning is not something that should be penalised.  In this context the trade union highlighted the decision of the labour court in Bank of Ireland versus a Worker (LCR22348) and HSE versus a Worker (LRC22232), where the court had routinely overturned disproportionate or wrongfully imposed decisions.  In addition, the trade union brought to attention the case of Lidl Ireland GMBH versus a Worker (LRC22180)  where the Labour Court overturned a decision which had a detrimental effect on career progression for the worker in question and highlighted that this particular case added specific emphasis to the Complainants’ case, as the sanction, while not only wrong and disproportionate, had denied the Complainant the chance of career progression through the previous 20 months.

The Complainant and his trade union representative sought that the sanction decisions taken by the Respondent be overturned and that the Respondent personnel records be amended to reflect this. 

The Complainant provided copies of each of the following appended to his submission:

·        Screenshots of email messages

·        Meat Industry Ireland market specifications

·        Respondent code of conduct

·        Audit history, certification

·        Letter in response to reader query about Quality Assurance Payment (article from Farmer’s Journal)

·        Complainant database herd profile on the 2nd July 2020

·        Interview with Mr M

·        Interview with Mr H

·        Letter of appeal on behalf of the Complainant

·        Copy of correspondence from Mr H to Ms R

·        Copies of case law referred to in the submission

Evidence given at hearing – The Complainant

The Complainant confirmed that he had never been given any training on the code of conduct and that he felt that the complaint against him was zealously pursued.  He stated that it would not have been possible to have gotten any payments backdated as he was not a member of the scheme prior to the date upon which he re-joined.  He stated that if he had overstepped the mark, he felt that a verbal warning and further training would have been the appropriate sanction.  The Complainant further stated that he was simply questioning the two other members of staff in relation to the provisions of the scheme and that questioning individuals is not putting pressure on them and that the risk of the matter being dealt with as a serious or gross misconduct was that it imposed a potential sanction of up to and including dismissal.  He confirmed to the hearing that as part of the Civil Service rules, if an individual is under sanction, they cannot apply for a promotion. 

The Respondent submitted that the relevant Quality Assurance Scheme is a scheme operated by them and that farmers participate on a voluntary basis.  The Respondent submitted that following application, farms enter into an audit cycle whereby an auditor will assess components with the scheme standard every 18 months.  The Respondent further submitted that the audit assesses performance against criteria in a number of areas, including but not limited to, animal traceability, farm feed and medicine records, animal health and welfare, animal housing and handling facilities and so on.  The scheme offers reassurance to customers and consumers of relevant Irish products that animals have been raised on farms operating to an independently audited and accredited standard.  The Respondent submitted that the benefits of the scheme for Irish farmers is that it verifies market claims in relation to standards relating to the production of Irish produce which demonstrates an ability to meet markets requirement which is important in securing access to markets and customers. 

The Respondent submitted that separately, farmers have the opportunity to benefit from in-spec bonus payments linked to the processor operated Quality Payment Scheme.  The Respondent outlined the Origin Green programme which collaborates with over 53,000 farms and 320 leading Irish food and drink companies to prove and improve the sustainability of the food they produce to meet the evolving needs of global customers and consumers.  The Respondent submitted that verified Origin Green members account for 90% of our food and drink exports and that the programme remains the world’s only national food and drink sustainability programme that drives sustainability improvement across the entire supply chain on a national level. 

The Respondent submitted that their assurance schemes and their infrastructure enable the functioning of Origin Green.  They submitted that the rollout of required sustainability assessments at farm level has been made possible by the Respondents pre-existing quality assurance infrastructure which was been in place for over 20 years and that this infrastructure sees more than 100 auditors undertake 650 independent farm audits each week.  The Respondent submitted that under the programme, over 260,000 carbon assessments have taken place on farms over a period of five years and that these unplanned sustainability assessments constitute a key component of the Origin Green programme for the industry. 

The Respondent submitted that during COVID-19 they adapted their audit process under the Quality Assurance Schemes and moved to carry out remote audits.  The system was approved by the Quality Assurance Board and was put in place and widely communicated to the industry.  The Respondent submitted that the relevant scheme to this matter contains a minimum residency requirement that is currently set at 70 days, which means animals must be resident on a quality assured farm or farms, for at least 70 days immediately prior to slaughter.  The Respondent submitted that meat processors operate a system called the Quality Payment System and that this system sets out the criteria by which animals will be assessed and then awarded an in-spec bonus payment as a result.  The Respondent submitted that these include the quality assurance status of the animal as well as the age at slaughter, carcass conformation and fat score.  The Respondent submitted that there is a range to the in-spec bonus and it is linked to the animal’s performance against the Quality Payment System criteria.  The Respondent outlined that the age of slaughter is one of the key determining factors as regards the Quality Payment System and that the majority of international customers have a preference for cattle slaughtered under the age of 30 months.  The Respondent submitted that there is a range of other factors that support the preference for younger animals; sustainability, tenderness, cut size, export requirements and specific risk materials.  The Respondent outlined that there is a price differential awarded through the in-spec bonus if the animal is under or over 30 months. 

In relation to residency the Respondent submitted that this is also one of the criteria that is included in the meat processors Quality Payment Scheme and currently meat processors have set this at 60 days.  The Respondent submitted that this means that animals must reside on a quality assured farm for a minimum of 60 days on the last farm immediately prior to slaughter.  The Respondent submitted that meat processors have the ability to query the Respondent quality assurance database to determine the quality assurance status of an individual animal or batch of animals when presented for slaughter.  This query facility allows processors to also query the status of an animal at a point in time and therefore meat processors can check if the animals meet both the 70-day residency requirement and the 60-day QPS requirement. 

The Respondent submitted that in the auditing of the Respondents’ Quality Assurance Scheme, auditors will only check that the processor has completed the 70-day residency check as this is what the Respondent is concerned with from a conformance perspective.  The Respondent advised that although both the QPS and the Quality Assurance Scheme have minimal residency requirements, they are very separate initiatives and oversight by the Respondent is limited to the Quality Assurance Scheme.  The Respondent submitted that, in so far as the Complainant received some in-spec bonus in August 2020, the Respondent had no role in relation to the implementation or oversight of that scheme and no input in relation to decisions made by any meat processor with regard to the payments of the in-spec bonus.

The Respondent submitted that in an email from the Complainant to Mr R in June 2020, he stated “I have a QA problem that I did not foresee.  I used to be a member of the (Respondent) Quality Assurance Scheme, however my membership with this scheme has lapsed.  Normally in a given year, I purchase some stock and later in the year sell this produce to my brother who is a member of the scheme.  However, through one thing and another, the stock that I purchased in latest year has not been transferred back into another QA holding.  The cattle I own are approaching 30 months of age, they are ready to market at meat export plant level.  However, they must be kept on QA holding for 70 days.  I am now in the system to get a remote audit completed for my holding.  It would be great to chat to you around the above if you had a moment today”.  The Respondent submitted that Ms SD, HR, received the information provided by Mr M, that a member of the particular department had approached another member of staff in the Quality Assurance Department and asked about backdating membership in one of the Respondent assurance schemes.  This prompted concern in the Respondent as a member of staff can not engage with a member of the Quality Assurance Scheme in respect of any requests in relation to client, companies, farmers.  The Respondent has strengthened its code of conduct specifically in this area in recent years along with ensuring the Quality Assurance Department is positioned on another floor within the building to assist in a separation of the two, and for confidentiality reasons. 

The Respondent submitted that the code of conduct which has been signed by the Complainant, provides that each employee “will safeguard the impartiality of the certification activities of the Quality Assurance staff, certification committee and the Quality Assurance Board.  You must undertake to report any conflict of interest or instance, which could negatively impact on the impartiality and objectivity of the certification committee or Quality Assurance Board, while also ensuring that neither you, nor your activities, unduly influence the activities of the Quality Assurance staff, certification committee and the Quality Assurance Board.  Conflicts of interest should be reported to the secretary of the Board who will report such matters to the Quality Assurance Board”. 

The Respondent further submitted that a breach of this code of conduct is deemed in the Respondents’ Disciplinary Policy to be gross misconduct. 

Due to the high level of importance of the Origin Green for the Irish Food, Drink and Horticultural Industry, and the Respondents’ role in Quality Assurance Schemes, it was vitally important that the Respondent investigate the matter.  The Respondent appointed an external consultant to investigate and set out terms of reference for the investigation.  The methodology applied by the independent investigator was set out in the final report along with her findings on the balance of probabilities.  The Respondent submitted that the report found that: “… On the balance or probabilities, the Complainant, in breach of his contract of employment and/or code of conduct, requested that the effective date of certification in respect of a herd owned by him and/or a person connected to him, be backdated”.  The Respondent submitted that the investigator set out in detail her reasoning for coming to that conclusion.  The Respondent submitted that the report further found that: “… On the balance of probabilities, the Complainant, in breach of his contract of employment and/or code of conduct, attempted to use his position within (the Respondent) to influence a decision in relation to the effective date of certification in respect of a herd owned by him and/or a person connected to him, namely, for it to be backdated” and again the investigator set out in detail her reasoning for coming to that conclusion.  The Respondent submitted that a third allegation “that the Complainant brought or attempted to bring undue influence on the certification activities of the Quality Assurance staff and/or certification committee and/or Quality Assurance Board” was not upheld by the investigator. 

The Respondent submitted without opening the findings of the investigation report, it is necessary to clarify some of the matters raised in the Complainants’ decision.  The Respondent submitted that the Complainants’ claims that he could not have benefitted from any backdating under the criteria of the industry payment scheme is not correct.  In the Respondent Quality Assurance Information Booklet, it states as follow: “while your farm may indeed be quality assured, this does not necessarily mean all your cattle or sheep, sent for slaughter, will receive Quality Payment System bonus.  The QPS bonus is paid by your factor, depending on a number of criteria, of which quality assurance is only one …

The (Respondent) rules:

According to the rules of the (Quality Assurance Scheme), the residency requirement for cattle to be deemed quality assured states they must have spent the last 70 days (unbroken) on a quality assured farm or farms.  What this means is that an animal could have spent 30 days on one quality assured farm, then moved to another quality assured farm, and spent a further 40 days on that farm directly prior to slaughter.  The animal is therefore deemed quality assured, once the quality assurance chain has not been broken. 

The Respondent submitted that therefore there is a requirement for cattle to be on a quality assured farm for 70 days under the Respondent standards to be quality assured and 60 days under the Industry Meat Processors Quality Payment Scheme.  They submitted that in the Complainants’ case, the herd was nearing 30 months, therefore backdating was important to the Complainant as it would impact the level of in-spec bonus to be received under the Industry Meat Producer Quality Payment Scheme, therefore the Complainant believed that it was necessary to request that his certification be backdated, in order to maximise the level of the in-spec bonus to be received under the Meat Processing Industry Quality Payment Scheme. 

On the 2nd July 2020 the Complainant received quality assurance certification for his farm, his herd was on his farm since the 31st May 2019, however his farm was not a certified quality assured farm during that period and only became so on the 2nd July 2020.  The Respondent submitted that the Complainants’ comments in his submission “and furthermore there would be no purpose in him doing so as the number of days that animals spend on a ‘certified farm’ is not a requirement of the Quality Payment Scheme”, is a misinterpretation of the content of the Meat Industry Ireland market specifications.  The Respondent submitted that a first requirement for the QPS is quality assurance status, that is, that the farm is, as mentioned above, a certified farm, quality approved, and part of that process states that the animal must be 70 days resident on a certified quality approved farm.  The Respondent submitted that the Quality Payment Scheme as referenced earlier, which delivers the in-spec bonus, in addition includes good price differentials related to carcass grade (conformation and fat score), certain market specifications such as quality assurance status as mentioned above, age at slaughter (if sold under 30 months a certain price is given per kg, if sold above 30 months the price per kg decreases), and certain farm residency requirements.  These residency requirements are the meat processors residency requirements, they include the requirement of a number of days on farm, 60 days residency on a quality assured farm.  These criteria do not preclude producers from marketing and selling their animals if they don’t meet the requirements.  However, the price they achieve will be less.  The Respondent submitted that therefore higher price can be obtained based on quality assurance status (which includes the number of days on a QA farm) and the age of the animal. 

The Respondent submitted that a disciplinary meeting was held on the 13th August 2020 by Mr JB, Senior Manager in the relevant sector.  The notes of the disciplinary hearing were provided and demonstrate that Mr B’s decision imposed a final written warning which would remain on file for 20 months.  In his letter containing his decision he stated the following:

“I note that the investigator was satisfied on the balance of probabilities that you, in breach of your contract of employment and/or code of conduct, requested that the effective date of certification in respect of a herd owned by you and/or a person connected to you, be backdated.  I note that the investigator also concluded that you attempted to use your position within (the Respondent) to influence the decision in relation to the date of certification, in respect of a herd owned by you and/or a person connected to you, mainly for it to be backdated.  The investigator, noting the persistence of your questioning, your use of your (Respondent) email address in this context, your level of familiarity and the tone of your email to Ms R”. 

“I have given the fullest consideration to the report and to the various matters raised by you and by your trade union representative on your behalf at the disciplinary hearing.  I have also noted the dismissal of the third matter relating to undue influence”.

“In making my decision on this matter, I have had particular regard to the code of conduct and the particular emphasis placed on the need to avoid any conflict or potential conflict of interest, in particular in so far as same relates to the certification functions and the need to ensure that no one seeks to influence or derive any benefit from same”.

“In this context I must express a very significant concern about your ongoing rejection of any failure or wrongdoing on your part with reference to the approach made by you relating to certification of the herd in question.  I am concerned about your lack of insight and I am concerned about the associated ongoing risk of further transgressions by you with reference to matters of this type.  In this context, I have had to consider whether trust and confidence in you has been damaged to the extent that your position has become untenable.  Indeed, I have noted that breach of the code of conduct is listed in the disciplinary policy as an example of gross misconduct which, as you are aware, could result in immediate dismissal.  I have decided however on this occasion, to impose on you a final written warning …”.

The Respondent submitted that the Complainant appealed this decision and that appeal was heard on the 15th September 2020 by Mr PB, Director of the relevant section.  Mr B’s decision on appeal stated that:

“We believe that the sanction is proportionate given the content of the (Respondent) code of conduct and integrity of Quality Assurance Schemes, we are concerned that you don’t appreciate the gravity of the transgression and haven’t taken responsibility for your actions as an influential officer of (the Respondent)”.

“We have decided to uphold the decision of the disciplinary hearing (August 13th) as communicated in the letter from (JB to the Complainant) on August 18th.  Therefore, the sanction of the final written warning will remain on (the Complainants’) file for a period of 24 months”.

In their submission the Respondent pointed out that their disciplinary procedures do not impose a maximum period for a final written warning.  However, the Respondent also drew attention to the Civil Service Disciplinary Code which states that a final written warning will be kept on an individuals’ file and, subsequent to satisfactory improvement, will become inactive after 24 months. 

The Respondent submitted that the findings of the independent investigation found that the Complainant, on the balance of probabilities “requested that the effective date of certification in respect of a herd owned by him and/or a person connected to him, be backdated”, and “attempted to use his position within (the Respondent) to influence a decision in relation to the effective date of certification in respect of a herd owned by him and/or a person connected to him, namely, for it to be backdated”.  The Respondent submitted that this charge of gross misconduct was found on its merits and notwithstanding the fact that the Complainant had no disciplinary warning on file.  The Respondent submitted that there can be no doubt about the necessary and effective date of registration and made reference to the interview with Mr H where the Respondent suggested the full interview needed to be considered, in particular paragraphs 3, 6, 7, 8 and 9 of that interview, contained in the report. 

The Respondent submitted that there was no basis for the contention that this matter has damaged the Complainants’ “good name and standing, not only in (the Respondent) but within the small farming community of Ireland”.  The Respondent submitted that the existence of the warning and the length of the warning on the Complainants’ file has not in any way operated to deny him any chance of career progression.  In conclusion the Respondent submitted that an independent investigator, following a thorough investigation, found that the Complainant had, contrary to his contract of employment and the code of conduct; a) requested that the effective date of certification in respect of a herd owned by him and/or a person connected to him, be backdated and b) attempted to use his position within (the Respondent) to influence a decision in relation to the effective date of certification in respect of a herd owned by him and/or a person connected to him, namely for it to be backdated. 

The Respondent submitted that opening up the Quality Assurance Programme to disrepute could have irreparable consequences for the industry including both stakeholder damage, financial loss to the industry and reputational loss for the Quality Assurance Schemes and the organisation.  The Respondent further submitted that as outlined by decision makers at the disciplinary hearing and on appeal, the Complainants’ actions were considered to be extremely serious.  The Respondent submitted that in that context the sanctions imposed of a final written warning remain active for 24 months (which will expire on the 18th August 2022), was entirely reasonable and proportionate in the circumstances and in line with the duration of a final written warning of the Civil Service generally. 

Further elaboration by the Respondent representative at hearing:

The Respondent representative outlined that the Complainant did query certification with colleagues and that he followed that up with a number of phone calls, that it appeared that he brought pressure to bear to have the complaint backdated although it was recognised that this was denied by the Complainant.  The Respondent representative outlined that not only did the Complainant seek to get his certification expedited, but he also sought to get it backdated.  In essence the Respondent representative outlined that the Complainant sought preferential treatment to get certification backdated.

The Respondent representative outlined that the matter was discussed first with the Complainant by his line manager and in the context that the Complainant made no acknowledgement of his wrongdoing, the matter was escalated to HR.  A

s a consequence HR established an investigation involving and external independent investigator.  The Respondent pointed to the email from the Complainants’ line manager of the 10th July 2020 where he referenced the fact that there was no acknowledgement or remorse on the part of the Complainant.  The Respondent representative stated that if the Complainant had simply been misguided and if there had been any semblance of remorse, then the matter would not be before the Workplace Relations Commission. 

Closing arguments on behalf of the Respondent

The respondent representative drew attention to the Complainant position that he did not bring pressure to bear on colleagues and that this had been consistently denied by the Complainant.  The respondent representative submitted that the Complainant had not only put pressure on colleagues to have his audit expedited but also to get the certification backdated.  He stated that the Complainant sought preferential treatment and he pointed out that Mr. H had referred the Complainant to a more senior colleague in order to try to bring the call to an end.

The Respondent representative stated that the Complainant had not acknowledged, at any stage of the process, that he had done anything wrong, or that he had acted in a misguided way.  He stated that if such an acceptance had been forthcoming then the parties would not be here.  He emphasised that the actions of the Complainant constituted a dismissal offence and that in considering the matter the Respondent was conscious that it went to the heart of the Respondent responsibility to protect the consumer and he drew attention to the Code of Conduct where it stated that the “integrity of the system is sacrosanct.”

In considering this matter I took into account the written submissions provided by the parties in advance of the hearing, together with supporting documentation provided.  I also gave careful consideration to the evidence adduced at hearing and additional information and argument outlined during the course of the hearing.  In addition, I considered all case law opened during the course of the hearing.

In summary the Complainant denies any wrong doing while acknowledging that if there was any wrong doing this should have been dealt with by way of a lesser sanction and further training.  He contended that the sanction of a final written warning was unfair and disproportionate and did not take account of his long and blemish free record with the Respondent.  He also contended that the sanction imposed prevented him from applying for promotional positions throughout the lifetime of the sanction.

On the other hand, the Respondent contends that serious allegations were made against the Complainant, those allegations ran contrary to the Respondent’s Code of Conduct and clearly constituted a potential “serious misconduct” which could have attracted a sanction up to dismissal.  The Respondent contended that the Complainant was given a fair investigations procedure, conducted by an independent external investigator, who ultimately found against the Complainant on 2 separate allegations.

The Respondent further contended that one of it’s core values was the protection of the scheme in the interests of the consumer and that the manner in which the Complainant had acted had the potential to undermine confidence in that scheme.  In all of these circumstances, the Respondent believed the sanction to be proportionate, especially in circumstances where the Complainant never acknowledged wrongdoing.  The Respondent denied that the Complainant had been prevented from applying for promotions and referred to specific competitions where the Complainant had made application.

In light of the above arguments, I considered that there were two key areas to be considered:

·        Was fair procedure applied

·        Severity of Sanction

Fair procedure

I noted that the respondent had established an independent investigation of the allegations brought to attention, that the Complainant had received details of the allegations against him and of the scope of the investigation. I noted that the Complainant was advised that the investigation was being conducted under the Disciplinary Procedure and the stage of the procedure that applied to the matters under investigation.  I noted that at all stages of the investigation and subsequent disciplinary procedure the Complainant was given the option to be represented.  I further noted that as part of the investigation process the Complainant was furnished with details of evidence gathered and given opportunity to respond to that evidence.

In relation to the disciplinary procedure, I noted that the Respondent advised the Complainant, in advance, that the meeting was to be conducted under the Disciplinary Procedure and the details of the relevant stage of that procedure.  Finally, I noted that the Complainant was afforded appeals process and that there was clear separation between the Respondent representatives conducting the disciplinary and the appeals process.

On the basis of the above I find that the respondent did ensure that fair procedures were applied at all stages, when addressing the allegations with the Complainant.

Severity of Sanction

I noted the Complainant position that he denied any wrong doing but that if the Respondent believed there had been wrong doing this should have been addressed by a lower level sanction and further training.  He contended that his long and blemish free record with the Respondent had not been taken into account and that the 2 staff members involved in the investigation had confirmed that they had not felt pressurised by him.

I noted the Respondent position that the Complainant was found to be, through an independent investigation, “in breach of his contract of employment and/or code of conduct,” and that he had “requested that the effective date of certification in respect of a herd owned by him and/or a person connected to him, be backdated”.  The Respondent also outlined that the Complainant had been found to have “attempted to use his position within (the Respondent) to influence a decision in relation to the effective date of certification in respect of a herd owned by him and/or a person connected to him, namely, for it to be backdated.”

I noted that the Respondent was fervent in the position that the integrity of the scheme in question was crucial for consumer confidence and was an integral value of the organisation.  I noted further that this was included in the respondent Code of Conduct and that the Complainant had received and signed for a copy of that document.

I do not consider it relevant that the Respondent had not provided specific training on the Code, the Complainant was an articulate employee, working at a senior level and well capable of reading and understanding the requirements of the Code of Conduct.  As a long serving employee, he would also be well aware of the importance of the scheme and be aware of the requirements to maintain the integrity of that scheme.

It is important to note that it is not the role of the Adjudication Officer to re-investigate matters such as this and in those circumstances, there can be no change made to the findings of the independent investigation.  However, it is worth noting that the findings made, quite rightly, were “on the balance of probabilities” and it is also clear that the Complainant never directly asked to have any favours done.  I have some concern that these areas were not explored at either the disciplinary or the appeal stages.  On that basis and taking into account a long unblemished employment record with the Respondent I consider that the sanction of a final written warning was disproportionate.  I also consider that the Complainant must acknowledge that it was inappropriate for him to continue pursue a line of questioning with colleagues, aimed at finding a “way around” the rules of the scheme and in those circumstances, I consider that it was appropriate to issue a disciplinary sanction.

Taking all of the above into account I recommend that the sanction imposed be commuted to a written warning and in the context that the lifetime of such sanction would by now be expired, that it be expunged from the Complainant’s record.

Disciplinary procedure, severity of sanction