Worker

Employer

Anonymised Parties

A Worker

A Chocolate Company

Representatives

Mark Dobbyn , Connect Trade Union

 Jennifer Cashman, Solicitor, RDJ LLP

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 - 00000410

27/06/2022

Dispute on disciplinary process and sanction outcome

The Worker represented as follows:

1.       He has been employed for 28 years as a maintenance fitter with the Employer.

2.       He has been a shop steward for much of that time.

3.       Until the incidents which gave rise to this dispute, the Worker had a problem-free record

4.       In 2020 he received an official acknowledgement from the Employer for 25 years of excellent service to the company

5.       Following a flawed disciplinary process, on 24 January 2022 he received a Final Written Warning.

6.       The issues over which he was disciplined were two

(i)                  not logging cleaning work in a verification logbook when this arrangement was agreed in the context of the Covid pandemic which was not applied by many other employees

and

(ii)                Questioning a manager whether he had the authority to send him off site when he had already satisfied other managers of his capacity to return to work following a sick related work absence.

7.       Following the disciplinary process the Complainant appealed the Final Written Warning sanction but the Appeals Officer upheld the sanction on 5 May 2022, which remained in place on his personnel file for 15 months from the date of the original finding, which meant that through time, and in accordance with the disciplinary policy it became expunged from his file on April 2023.

8.       The Complainant accepts that while the warning is no longer on his file he objects to unfair way he was treated, the unequal treatment to him with ither colleagues (who also did not complete the cleaning verification logbook) and the unbalanced way that the disciplinary process was dealt with (favouring the uncorroborated evidence of the manager who while the Worker accepts he questioned, at no point did he disrespect him.)

9.       The Worker contends that the manager had an axe to grind as against him and he still does. And given that there are other disciplinary matters that have developed from the finding/ sanction means that it still remains part of a continuing negative narrative between him and his employer and for this reason the issue of the sanction, whether or not it is still on his file, remains a live issue.

10.   The Worker requests a finding that the now expunged warning be declared as one which should never have been applied in the first instance.

11.   The unfairness of this process has resulted in anxiety and stress for the Worker. For a man that for 25 years was proud of his work contribution, he now feels disrespected and is being hounded out of his job.

The defence of the Employer to this dispute was as follows:

1.       The Final Written Warning is now expunged from the Worker’s file.

2.       Consequently this dispute is moot because the remedy sought by the Worker has already happened through elapse of time (the Employer relies on Adj IR - SC – 00000189 A Driver v. Supermarket) which is on all fours with the present case and in which the Adjudicator found that where a sanction has expired through an effluxion of time, there is no dispute to be considered.

3.       The Worker has failed to identify any defect in the disciplinary process as carried out by the Employer.

4.       The WRC has no jurisdiction to interfere with disciplinary findings if a disciplinary process has been carried out in accordance with procedures that have been agreed between the parties.

5.       The disciplinary process that was undertaken in respect of two related incidents was carried out fairly and in accordance with agreed procedures. The finding of misconduct was reasonable and the sanction of a final written warning was in a band of reasonable sanctions that the Employer was entitled to take.

6.       None of this takes away from the fact that the Worker has devoted most of his working life to the Employer and the Worker deserves all credit in that respect.

7.        

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

Mootness

I am not fully persuaded by the Employer’s submission that once a sanction has time- expired and is no longer on a personnel file that no dispute may be said to exist. In considering IR - SC – 00000189 relied upon by the Employer, I do not accept, as has been contended by the Employer that the Adjudication decision is on “all fours” with the present case where a finding or sanction is connected to later disciplinary actions that are live. I am not certain that mootness should be applied in the way that it may be applied in justiciable Employment Rights complaints. This is an IR complaint.

Devoting 28 years, which is most of this Worker’s working life to the Employer is something that is important to acknowledge. The fact that for those years the Worker worked happily, productively and had no disciplinary issues is another important point to acknowledge. Companies are only successful and profitable due to the efforts of their work-force and it was significant and correct that the Employer in this IR dispute acknowledges that, which I commend.

If having spent such a long and successful working relationship, something goes wrong in an employment relationship, it is important that the event or events that gave rise to the problem do not from then on become what defines the relationship, because that would simply be inaccurate.

I can understand that the Worker in this case feels hard done by and blamed in the wrong. I can understand why he would want the only thing that undermined his good long service record, the expired warning, to be addressed because in his view, it should never have been made in the first instance.

However I do not accept his submission either that the appeals (both internal and to the WRC) kept the matter alive until this WRC hearing. The Worker was clearly informed in May 2022 that the fifteen months of his warning ran from January 2022 and not later than that.

I am disinclined to find (as the Employer submits) that in every Industrial Relations dispute, where a warning has expired through time passing even if it has followed an entirely defective disciplinary process (which is not the case here) it is immune from being adjudicated upon simply because time has made it disappear, because this does not address the sense of unfairness at it having been made in the first instance and the fact that it could have triggered other issues, which unfortunately appears to have happened here. I certainly accept that mootness should be determinative with justiciable employment rights, but the industrial relations disputes are supposed to maintain a constructive approach within an adjudicative process and mootness and immunity are not necessarily features of that.

WRC IR Jurisdiction is not a rehearing

However more fundamentally what the WRC IR Adjudication process is not, is an appeal of an internal decision. It is not a rehearing.  It is an analysis of what were the terms of the agreed disciplinary process and it is then an assessment of whether those terms were adhered to when the present Worker was disciplined. Neither is it an exact science. The range of powers that are open to the Employer are within a band of reasonable responses.

The Worker has not identified any specific defect which would undermine the finding which was ultimately made and the Employer is correct in saying that an AO’s jurisdiction may not extend to undermining findings by an Employer if the finding is within a range of reasonable responses to findings of a non-defective disciplinary process. The onus of proof is on the Worker to show that there were defects as in a failure to follow the terms within the agreed disciplinary process. He has failed to discharge this onus. His contention that a defect was that  it is contrary to company policy for his manager to send him off site, is an assertion without any reference to which company policy he is referring to. A assertion of a defective process without evidence is not equivalent to proof of a defective process.

For reasons set out I find this dispute to be not well founded.