ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00002198
Parties:
| Worker | Employer |
Anonymised Parties | A Worker | An Employer |
Dispute:
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 - 00002198 | 30/01/2024 |
Workplace Relations Commission Adjudication Officer: Kara Turner
Date of Hearing: 28/05/2024
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended),following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
Background:
A dispute in relation to disciplinary sanctions was referred to the Workplace Relations Commission on 30 January 2024. |
Summary of Worker’s Case:
The dispute referred by the Worker concerned the Employer’s investigation and disciplinary procedure and a written warning that issued to the Worker on 22 December 2023 on foot of same. On 18 December 2023, the Worker was instructed not to attend a client call. The Worker was informed that allegations had been made against her by an unnamed person. It was submitted that the Employer had considered the Worker guilty from the outset by apologising to the unnamed complainant before addressing the allegations with the Worker and before any hearing had taken place. It was further submitted that the Worker had been defamed by the Employer. The Employer’s investigation was carried out in a very short timeframe and was not a thorough investigation in that relevant persons were not contacted by the Employer in its investigation of the allegations against the Worker. The Worker fully refuted the allegations made against her at a disciplinary hearing on 21 December 2023. Notwithstanding, the Worker was issued with a confirmation of a written warning on 22 December 2023. The Worker appealed the written warning on 26 December 2023. At the time of referral of the dispute to the Workplace Relations Commission, the Worker had not heard back from the Employer on her appeal. In resolution of the dispute, the Worker sought a written communication from the Employer confirming that there had been no evidence to substantiate the allegations and the Worker was cleared of the allegations against her. |
Summary of Employer’s Case:
The Employer operates in the social care sector providing homecare for mostly older and vulnerable adults. The Worker was employed as a carer to deliver care to the Employer’s clients through scheduled care calls. On receipt of a complaint on 18 December 2023 concerning the Worker, the Employer informed the Worker of the allegations made against her and that she was removed from a particular care call pending the outcome of an investigation. The Employer investigated the allegations and concluded that the disciplinary process should be initiated. The Employer wrote to the Worker setting out the specific allegations of misconduct and inviting her to attend a disciplinary hearing. The invitation letter included a statement obtained in the Employer’s investigation, the Employer’s disciplinary policy and informed the Worker of her right to be accompanied and to bring any witnesses to support her case. The Employer’s investigation was relatively straightforward. Further to a complaint received, the Employer obtained a statement from a relevant person. Issues arose from that statement which warranted being addressed with the Worker by way of a disciplinary hearing. The Employer followed its procedures and the Worker’s rights under SI 146 of 2000 were observed. The process was fair, and the disciplinary sanction was proportionate. Following a disciplinary hearing on 21 December 2023, the Worker was given a written warning for misconduct. The Worker subsequently indicated that she wished to appeal the decision through the internal appeals procedures. The Employer asked the Worker to detail her grounds for the appeal but never received a reply. The Worker was on certified sick leave from 27 December 2023 to 12 January 2024. The Employer was notified by the Commission of the referral of this dispute on 20 February 2024. On 26 February 2024, the Employer’s Head of People and Culture met informally with the complainant and a support person to see whether the Worker’s concerns could be addressed with a view to resolution internally. The Worker was again offered the opportunity to appeal the written warning. On 1 March 2024, the Worker informed the Employer that she had changed her mind about an internal appeal. It was submitted that the Worker had not exhausted internal procedures before the referral of the dispute to the Workplace Relations Commission. Without prejudice to the foregoing, it was submitted that a written warning issued to the Worker following a fair and impartial disciplinary process and was a justified and proportionate sanction. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.
The dispute referred by the Worker on 30 January 2024 concerned the Employer’s procedure in and around allegations that had been made against her and its confirmation to her of a written warning on 22 December 2023 arising from the allegations. My jurisdiction under section 13 of the Industrial Relations Act 1969 is to investigate the trade dispute referred and to make a recommendation to the parties giving my opinion on the merits of the dispute. The Employer was notified by the Commission of the previously mentioned dispute referred by the Worker and, within the relevant statutory timeframe, confirmed that it did not object to an Adjudication Officer’s investigation of the dispute.
The Worker submitted to the Commission documentation in March and April 2024 referable to other issues in employment. The Employer requested removal of this documentation from the file on the basis that it was entirely separate to the disciplinary the subject of the dispute referred by the Worker to the Commission.
My investigation concerns the dispute referred by the Worker on 30 January 2024. It does not concern issues or disputes that post-dated the referral in respect of which the Employer objected to being included in my investigation.
It is well-established that parties are expected to effectively utilise internal workplace procedures before referral of a dispute to the Workplace Relations Commission.
In this case, the Worker was informed by correspondence dated 22 December 2023 that she was being issued with a written warning. The Worker was further informed of a right of appeal against the decision. The Worker notified the Employer on 26 December 2023 that she would be appealing the decision and requested copy of the appeals process policy. The Employer responded to the Worker on 27 December 2023 and requested the Worker send her appeal in writing stating her grounds of appeal. The Employer did not hear further from the Worker regarding an appeal of the disciplinary sanction until it was notified by the Commission of the dispute referred in relation to the disciplinary sanction.
The Commission received the complainant’s dispute referral on 30 January 2024 by way of complaint form dated 26 January 2024 and a complaint specific details document prepared 3 January 2024 which refers to the Worker having appealed the Employer’s decision on 26 December but not having heard anything back from the Employer. In this regard I note the Employer’s response of 27 December 2023.
It is clear from the foregoing that the Worker did not utilise the internal procedures available to her to appeal the disciplinary sanction the subject of this dispute. It was submitted on the Worker’s behalf that the reason the Worker went directly to the Commission was because the Employer had refused point blank to remedy the wrong and the Worker had come to the conclusion that she would be caught up for months in a drawn-out appeal process conducted by an organisation who she believed she would not receive fair treatment from. I am not satisfied there was justification for this reasoning in January 2024 when the Worker referred the dispute to the Commission. The Employer had responded promptly to the Worker’s appeal notification email and the ball was in the Worker’s court regarding pursuit of the appeal when the Worker referred the dispute to the Commission.
As the Worker did not exhaust the Employer’s internal appeal procedure and given that she is no longer in the Employer’s employment, I recommend that no further action is required in relation to the dispute concerning the written warning issued to the Worker in December 2023. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the Employer takes no further action in relation to this dispute.
Dated: 07th August, 2024
Workplace Relations Commission Adjudication Officer: Kara Turner
Key Words:
Industrial relations - Failure to exhaust internal procedures |