Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Shonagh Byrne SIPTU

Jean Winters Construction Industry Federation

Act

Dispute Reference No.

Date of Receipt

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

CA-00055225-001

15/03/2022

The Worker seeks that a 12-month first written warning be expunged from his file as he alleges that natural justice was denied to him in that the procedure was flawed and unfair and that the imposition of a double sanction was unfair and disproportionate and he seeks to be repaid his loss of wages from a one-day’s unpaid suspension which took place on the 3rd March 2022.

The Worker was employed with the Employer from January 2017 until his employment ended in May 2022. The Worker outlined that on the 26th January 2022 he was invited to attend a disciplinary hearing on the 4th February 2022. The disciplinary hearing was scheduled to deal with four allegations against the Worker arising from incidents on the 25th November 2021 and the 12th January 2022.

The disciplinary hearing took place on the 4th February 2022 following which, on the 17th February 2022, the Employer issued the Worker with a first written warning with a 12 month duration and a second sanction of one-day’s unpaid suspension. According to the Worker the decision regarding the disciplinary sanction was taken by the Managing Director. The Managing Director did not conduct the disciplinary hearing himself but took the decision to issue the Worker with the double sanction. The Worker did not believe that the relevant site supervisor or any other staff member was interviewed regarding the incident on the 25th November 2021.

According to the Worker the Employer was in breach of its disciplinary policy and the principles of natural justice and that the deduction of one-day’s pay in addition to a first written warning was unfair and unreasonable having regard to all the circumstances. The Worker was only asked to give a statement three weeks after the incident involving the supervisor on the 25th November 2021. No other staff member was interviewed as part of the investigation. The supervisor was not interviewed as to why he was changing the work instruction for the Worker on the 25th November 2021. The Employer did not investigate the Worker’s health and safety concerns regarding the instruction issued by the supervisor. The Worker was issued with a double sanction of a first written warning and a one-day’s unpaid suspension which is disproportionate and unfair. The Managing Director made the decision to issue the sanction despite him not conducting the disciplinary hearing. The appeal of the sanction was also to be directed to the Managing Director which is in breach of fair procedures. The Worker was not afforded an appeal of the sanction by the Employer in breach of natural justice and fair procedures.

On the 25th February 2022 the Worker was advised that he would receive a one-day’s unpaid suspension of the 3rd March 2022 and he was deducted one-day’s pay that day.

The Worker subsequently left employment with the Employer in May 2022.

The Employer stated that on the 26th January 2022 the Worker was invited to a disciplinary hearing in relation to four incidents which occurred on the 25th November 2021 and the 12th January 2022. The disciplinary hearing took place on the 4th February 2022 and was conducted by the Project Manager and the Site Supervisor. Minutes were taken from the meeting and they were signed by all parties including the Worker. The Employer submitted that the one-day’s unpaid suspended leave was communicated in writing to the Worker on the 25th February 2022. It was stated on behalf of the Employer that it felt that the quantity of the allegations gave way to skipping progressive sanctions however the Employer did not want to issue a final written warning to the Worker as such a harsh sanction could only have a negative impact on the Worker’s morale. The Employer therefore imposed a lesser sanction of a first written warning and a one-days unpaid suspension in the hope that the sanction would deter the Worker from further misconduct.

The Employer’s representative made reference to the S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 and submitted that Section 10 provides that disciplinary action may include suspension without pay and Section 11 provides that there may be instances where more serious action, including dismissal, is warranted at an earlier stage. Further reference was made to the Employer’s disciplinary policy and it was submitted that the Employer invoked fair procedures in accordance with its disciplinary procedure and that the Worker fairly received a first written warning for what was described as “numerous well-founded allegations to which he admitted to doing”. According to the Employer the escalation of adding a one-days unpaid suspension was to hone in on the severity of the situation without providing a final written warning for four upheld allegations.

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

A disciplinary hearing took place on the 4th February 2022 and following the disciplinary hearing, on the 17th February 2022, the Employer issued the Worker with a first written warning with a 12 month duration and a second sanction of one-day’s unpaid suspension. The Worker seeks that the 12-month first written warning be expunged from his file. The Labour Court has found on many occasions that a warning which longer exists cannot be expunged. I conclude that the first written warning no longer exists and given that the Worker resigned from his employment with the Employer in May 2022 and is no longer employed by the Employer I recommend that the Worker and the Employer move on from this aspect of the dispute.

In relation to the imposition a double sanction in the form of a first written warning with a 12 month duration and a second sanction of one-day’s unpaid suspension, I have considered the documentation submitted to me on behalf of the Worker and the Employer and conclude that there is no term or provision for unpaid suspension deductions from the wages in the Worker’s contract of employment where the unpaid suspension deduction from wages arises in conjunction with a first written warning as arose in instant dispute and that the deduction of one-day’s pay was not fair or reasonable in all the circumstances. I recommend that the Employer pays to the Worker the net sum of €176.92 being the equivalent of one-day’s pay.