Worker

Employer

Anonymised Parties

Social Care Worker

Health Association

Representatives

Ms. Martina Weir, Siptu

Ms. Aisling McDevitt, Ibec

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 - 00001311

24/04/2023

The Worker commenced employment on 1st August 2000. At all relevant times, the Worker’s role was described as that of “Social Care Worker”.

On 24th April 2023, the Complainant referred the present dispute to the Commission. Herein she alleged that the Employer failed to properly investigate a series of complaints against her and that the sanction imposed on foot of the same was disproportionate and inappropriate. By response, the Employer submitted that the allegations against the Worker were properly investigated, that the sanction imposed on the Worker was proportional to the wrong-doing established and that the procedure used to effect the same respected the Worker’s natural and contractual rights.

Following the Employer’s positive election to engage with the dispute, a hearing was convened for, and finalised, on 25th September 2023.

Both parties issued extensive submissions in advance of the hearing. These submissions were expanded upon and contested by the opposing side in the course of the hearing.

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

On 11th March 2022, the Worker attended for work as normal. On arrival she was met with her line manager and was brought to a meeting with a HR representative. During this meeting, that Worker was informed that she was suspended with pay, with immediate effect. At the end of the meeting, the Worker was provided with a prepared letter of suspension. This correspondence accused the Worker of misconduct in the vaguest terms possible, with no specific allegations being put to the Worker.

Following same, the Worker’s trade union sought to have the Worker’s suspension lifted, and the actual allegations put to the Worker. While no response was received to this correspondence, the Worker engaged with a third-party body in relation to an investigation process. In the course of this investigation, it became apparent that the Worker had been accused of insubordination and a failure to carry out a reasonable management instruction. At all times, the Worker strongly disputed these allegations and suggested various witnesses that might assist in her defence. The investigator failed to examine the points raised and found, on balance, that the Worker said four of the nine comments that constituted to subject matter of the investigation.

Following the delivery of the report, the Worker was invited to a meeting on 15th August 2022. At this meeting, the Worker strongly contested the outcome of the report, setting out her concerns at length, in writing.  While the Employer did undertake to review the same and respond without delay, no contemporaneous response was received. 

Over six months later, on 24th February 2023, the Employer issued their outcome in respect of the process. On receipt of this correspondence, it became apparent that the Employer had ignored each of the Worker’s points and instead issued the extraordinarily disproportionate sanction of final written warning. In addition to the same, the Employer dictated that the Worker should be subject to a “Personal Improvement Plan”, a sanction that is not provided for in the disciplinary policy.

Following the delivery of this sanction, the Worker appealed the same in accordance with the Employer’s internal policy in this regard. Despite the best efforts of the Worker and her representative, the Employer maintained the inappropriate sanction of final written warning, with the only concession being that the sanction was to remain on file for nine, as opposed to twelve, months.

Following this process, the Employer imposed a further sanction on the Worker by unilaterally changing her place of work to an alternative care centre in the region. 

By submission, the Worker stated that the manner of her suspension was unfair and that the suspension itself was unnecessary. She further submitted that the third-party investigator failed to properly investigate the wrong-doing alleged. She submitted that the process was unnecessarily elongated, causing her further suffering. She submitted that the sanction imposed was disproportionate, inappropriate and in contravention of the Employer’s own internal procedures in this regard.

In denying the Worker’s allegation, the Employer submitted that the disciplinary process respected all of the Worker’s natural and contractual rights. They further submitted that the disciplinary sanction imposed was proportionate and appropriate given the wrong-doing established during the investigatory process.

In March 2022, the Worker’s line manager issued correspondence alleging various failures to following reasonable management instruction and insubordination on the part of the Worker. Given the substance of these allegations, and the nature of the Employer’s activities, the Employer elected to place the Worker on suspension. Said suspension was fully in compliance with the Respondent’s internal procedures in this regard.

Following the same, the Employer engaged the services of the third party investigator. Following a reasonable period of time, this third party produced a comprehensive report. The report clearly found that the Worker had committed the wrong-doing alleged and naturally, the Employer was obliged to consider the same under their internal disciplinary policy.

While a meeting in relation to the same was convened shortly following the delivery of the report, unfortunately the process was unavoidably delayed thereafter by internal staffing issues.

Following a consideration of the report, and the issues raised by the Worker, it was determined that a final written warning should be applied for a period of twelve months. In addition to the foregoing, and in an effort to resolve the issues that led to the imposition of the sanction, the Employer stated that a performance improvement plan should be put into place to prevent such issues form arising in future. In this regard it was submitted that this was not a further sanction under the disciplinary policy, but a means of assisting the Worker in her return to work.

Following a throughout re-evaluation of these matter on appeal, the sanction was deemed to stand, with the term slightly reduced to a period nine months.

Regarding the re-assignment of the Worker, the Employer submitted that they are entitled to re-assign their employees dependent on the requirements of the organisation. In this regard, they stated that the Worker had previously worked in the new location and that staff members would frequently change location in this manner. They further submitted that the proposed new location involved no substantive increase in the Worker’s travelling time.

In summary, the Employer submitted that the process adopted in respect of the disciplinary process was fair and transparent. They further submitted that the sanction imposed was proportionate and appropriate in the circumstances.

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

The present dispute involves a long running disciplinary process, the cumulation of which was the imposition of a final written warning, a performance improvement plan and reassignment to another location.  In the course of the hearing, the Worker took issue with almost every aspect of the process and the outcome, submitting the same was generally unfair and oppressive.

The first issue raised by the Worker was the manner by which she was informed of her suspension. In recent times, the superior courts have found that paid suspension, although nominally a neutral, holding measure, will inevitably have a significant impact on an employee and should only be applied when deemed absolutely necessary. In the present case, the Employer received a series of concerning allegations from the Worker’s direct line manager. While these broadly related to a failure to obey a reasonable management instruction, given the nature of the Employer’s activities, the suspension of the Worker whilst an investigation proceeds in not an unreasonable position to adopt. Regarding the manner by which the Worker was informed of this development, such meetings will inevitably cause an enormous amount of stress, concern and even confusion on the part of the employee involved. However, in the present case, it is apparent that these issues were exacerbated by the Employer delivering prepared correspondence alleging misconduct in the vaguest terms possible, with no specific allegations being raised at this time. This naturally caused the Worker a massive amount of stress and could have been mitigated had the Employer simply providing the Worker with a copy of the specific allegations raised – a document she was entitled to have sight of in any event. If the Employer had concerns with disclosing this document at this time, it would not have been an overly onerous task to summarise the same with some degree of precision.

Notwithstanding the foregoing, I note that the investigation process commenced in the days following the suspension, and these matters were clarified shortly thereafter. Following the subsequent issuing of the report, the Employer met with the Worker within a reasonable timeframe. However, thereafter an unwarranted and unnecessary six-month delay occurred whereby the Worker was essentially left in a state of limbo awaiting the outcome of the disciplinary process.  While I accept that the Employer experienced staffing issues at the relevant time, this is of no benefit to the Worker who remained on suspension for many months longer than required.

Regarding the sanction imposed on the Worker, it is apparent that the Employer sought to rely on the outcome of the independent investigation, as they were entitled to do. This correspondence states that,

“We have taken the view that workplace relationships are difficult and your behaviour has contributed to this.”

The correspondence goes on to issue a final written warning, “with respect of your attitude and behaviour and breaching the staff code of conduct”. By submission, the Worker has alleged that this sanction is disproportionate to the wrongdoing alleged in the report, which is itself fully disputed. Having reviewed this correspondence, it is not at all clear why a final written warning, being the second most severe sanction available, was imposed as to any other form of outcome. Such warnings are usually reserved for extremely serious wrong-doing and could easily be progressed to full dismissal in the event of any further disciplinary sanction being imposed within one year. In circumstances whereby the allegations against the Complainant broadly related to failures to follow management instruction it is not apparent that such a sanction is proportionate in the circumstances. Having regard to the foregoing, I recommend in favour of the Worker in relation to this aspect of the dispute.

In addition to the foregoing, the Worker has alleged that other sanctions were imposed following the disciplinary process. In particular, she submitted that the imposition of a “Personal Improvement Plan” and her proposed relocation to another site constituted further disciplinary sanction. By response, the Employer submitted that the same were not intended as sanction, but instead were implemented in an effort to facilitate the Worker’s return to employment.

Regarding the first point raised, I note that PIP referenced above was communicated to the Worker by way of the outcome letter imposing the final written warning. In this regard, the PIP is listed as a bullet point under the heading,

“Based on the above (being the outcome of the process) the following is the outcome,

….a personal improvement plan will be put in place, to ensure that you are aware of the requirements of the role and appropriate engagement with colleagues and line manager”

Having regard to the foregoing, it is apparent that PIP is expressly listed as an outcome of the disciplinary process. In addition to the same, the context of the same clear implies a series of inter-personal failures on the part of the Worker.   

Regarding the proposed reassignment to an alternative location, I note that this was unilaterally imposed on the Worker without any form of input or consent on her behalf. Again, in the context of the facts of the dispute, it is difficult to escape the conclusion that this arose solely as a consequence, and was imposed as an outcome, of the disciplinary process.

Having reviewed the process, it is apparent that the Employer engaged the services of a third party investigatior and, reasonably, sought to rely on the findings of that report in applying a disciplinary sanction. Notwithstanding the same, issues arise as to the severity of the sanction imposed, the delay in imposing the same and the additional consequence arising from the outcome. At the heart of this dispute is an inter-personal dispute between the Worker and her line manager. It appears that the additional consequences applied seek to resolve the same by locating the employee elsewhere and imposing a plan seeking to improve the Worker’s interpersonal skills. This outcome has not had the desired effect, with the Worker being on stress related sick leave for the previous number of months.

In an effort to resolve this matter, I recommend that the additional consequences arising from the disciplinary procedures i.e. the PIP and the proposed unilateral relocation, be discontinued. In the alternative, I recommend that the parties meet within two weeks of the date below and discuss the Worker’s return to work in a constructive manner. This may include relocation, however the same must be with the Worker’s engagement and consent. In addition to the foregoing, I recommend that the parties engage the services of a mediator to meet with the Worker, her line manager and any other relevant party. Finally, regarding the sanction itself, I find that the process of the Worker’s return to employment would not be assisted by the re-litigation of what should become a historical matter. In this regard, I recommend that the sanction be reduced to a written warning and should be deemed to have expired by the date below. Finally, I recommend that the Employer pay the Worker the sum of €2,500 in compensation, primarily for the difficulties arising from the delays in the process.

PIP, Suspension, Relocation