LCR22842

1.Complaint Under Section 20(1) Of The Industrial Relations Act 1969

BACKGROUND:

2.The Worker referred this case to the Labour Court on 9 June 2023 in accordance with Section 20 (1) of the Industrial Relations Act, 1969, and agreed to be bound by the Court’s Recommendation. A Labour Court hearing took place on 19 October 2023.

RECOMMENDATION:

The Court acceded to a request that a legal firm be permitted to represent a party in the instant case, in accordance with the requirement for such permission to be sought under s.20(6) of the Industrial Relations Act 1946.

The Union sought that the Court recommend that a Final Written Warning given to the Worker, and still currently in application, be expunged and that the Court recommend to the Employer that their procedures be updated.

In respect of the latter, the Court noted that this was a collective matter appropriate for discussion between the parties on a collective basis. The Employer representative advised the Court that a review of these procedures had commenced, in any event.

The Union argued that the procedures leading to the Final Written Warning had been defective and that it was not warranted by the facts of the case.

The Employer defended the Final Written Warning given to the Worker on grounds that it was justified and that proper procedures had been applied.

The Final Written Warning was given following an assessment by the Employer of the Worker under a Performance Improvement Plan, while he was on a Written Warning, arising out of his inter-actions with colleagues and management.

The Court notes that an assessment by a Senior Director of the Worker’s behaviour while on the Final Written Warning is due in the coming weeks.

The Court does not consider that defects in the procedure used by the Employer that led to a conclusion to apply a Final Written Warning, as identified by the Union, are sufficiently serious as to give rise to concerns regarding fairness. Indeed, the Court was struck by the meticulous approach, albeit protracted, of the Employer in order to ensure fair treatment of the Worker.

The Court is not convinced either that it could be stated categorically that the Worker’s behaviour was of such little consequence that the Employer was completely unreasonable in imposing a Final Written Warning.

However, the Court notes the absence of specific, measurable and easily understood criteria against which the Worker’s behaviour might be assessed in the upcoming review. The Court notes also that some of the behaviours described as being taken into account in determining that a Final Written Warning should be imposed are not clearly behaviours that an objective observer would regard as being obviously and inarguably unacceptable.

Taking those considerations into account, the Court recommends that the period of the Final Written Warning be extended by six months from its current expiry date, to 20 May 2024, and that clear and measurable criteria be provided to the Worker under which his behaviour will be assessed at the end of this period. This will eliminate any lack of clarity, or any perception of same, for both parties.

The Court so recommends.

	Signed on behalf of the Labour Court
	Tom Geraghty
COR	______________________
20 October 2023	Deputy Chairman