Worker

Employer

Anonymised Parties

A Hygiene Lead

A Food Company

Representatives

SIPTU

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 - 00001432

02/06/2023

The case arises from a disciplinary sanction appeal hearing, at which the complainant’s request for trade union representation was denied by the respondent. This was despite SIPTU having informed them in writing that under S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, he was entitled to an employee representative from his trade union and that under the Code of Practice an “employee representative” includes a colleague of the employee's choice and a registered trade union.

The SIPTU official was told by the employer not to attend the appeal hearing to which he reluctantly agreed to as the appeal was being held on the private premises of the employer.

Also, at one point during the investigation/early disciplinary stages another oral request for representation by the union was denied and the procedures leading up to a sanction of final written warning did not comply with the general principles of natural justice and fair procedures as defined within clause 4.6 of S.I.146/2000 which states

 “The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include that the employee concerned is given the opportunity to avail of the right to be represented during the procedure.”

This resulted in a flawed and unfair process and outcome.

The complainant was given a final written warning on 14th April 2023 following an investigation; disciplinary meeting and outcomes meeting to be in force for twelve months, and he was given the right to an appeal hearing.

He stated that he was disciplined and received the sanction due to having left his shift on 20th March 2023 to go to his car in the staff carpark to take prescribed medication.

He then fell asleep for four hours and drove home without clocking out or getting permission to leave, nor did he attempt to explain his absence to management prior to leaving work on that day. The following morning, his line manager questioned his absence and the complainant explained as set out above.

The investigation/disciplinary and outcome/sanction process then ensued.

The complainant had mentioned his lack of confidence regarding communications in English and his lack of knowledge of his rights whilst undertaking a disciplinary appeal and stated that he would not be keen on attending the appeal hearing without SIPTU representation at it.

On April 27th, 2023, SIPTU wrote to the respondent’s HR Department, saying

“that our member, has requested that I represent him tomorrow morning at 10am at his disciplinary appeal hearing. Under the Code of Practice on Grievance and Disciplinary Procedures contained within Statutory Instrument SI 146/2000, [the complainant] has a right to elect a trade union official as an ‘employee representative’ at a disciplinary hearing”.

In response to this the company responded also by email) postponing the meeting so that it could take further advice on the matter.

On May 2nd, 2023, the company responded turning down the request and saying that it would re-schedule the hearing. The union responded saying that because he was denied the representation, he sought he would not attend the hearing

 The union also drew attention to the fact that the company had previously said that a “support employee,” was only there purely for support and that he cannot in any way speak for [the complainant].”

This evidence is that the process prior to appeal stage denied the complainant the right to have a representative who could speak and act on his behalf. That meant he was denied the right to representation as defined in S.I. 146/2000 throughout this process.

The company reply included the following.

‘Toclarify, it is our position that our policy complies with SI-146 in outlining that a fellow employee may attend the hearing with [the complainant]. It may be worth noting that we consider requests on a case-by-case basis by employees to have a 3rd Party representative attend formal meetings, where it is determined that exceptional circumstances exist. As no exceptional circumstances arise on this occasion and for the avoidance of doubt, I wish to confirm again that we will be adhering to our policy on this occasion. We would encourage [the complainant] to avail of his right to appeal and elect a fellow colleague to attend the meeting tomorrow, as his representative, should he choose so.”

The union supplied the complainant with a written summary of advice in bullet points to guide him at his appeal hearing and to his representative made himself available for a call at any stage of the hearing.

At the appeal hearing, he was allowed to take a break to make such a call, informing his official that he was offered an opportunity to have the hearing postponed in order to organise a work colleague, who could on this occasion speak on his behalf.

The complainant decided to proceed on his own, and just respond that his wish was to have SIPTU represent him, and in absence of that, he would represent himself as he did not see the point of having a colleague who most likely had no experience nor training  in how to act as a representative for him in such a setting.

Even this offer by the respondent was quite a sea changeintheirpolicytodecidetoallowhimataverylatestagein the process to now have a work colleague (only) who could speak on his behalf.

On 15th May 2023, the complainant received his Disciplinary Appeal Outcomes letter. One of his grounds of appeal was that he was denied his rights to natural justice and fair procedures chiefly based on the fact that he was not allowed to have a representative who could speak or act on his behalf up to all meetings up to the Disciplinary Outcome stage of the process, yet despite this in her

findings, the decision maker’s specific response to this ground of appeal was

 “I didn't see any evidence of the principles of natural justice being denied.”

The Appeal Hearing found that the sanction of a final written warning should be upheld.

In summary the complainant was denied his request to have a trade union representative present at his disciplinary appeal hearing on the 5th May 2023 despite receiving written communications from SIPTU that informed them that in line with clause 4.4,  S.I. 146/2000 which states.

 “For the purposes of this Code of Practice, “employee representative” includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise.,”

and therefore, the procedures leading up to a sanction of final written warning did not comply with the general principles of natural justice and fair procedures as defined within clause 4.6 of S.I. 146/2000 which also states

 “The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include That the employee concerned is given the opportunity to avail of the right to be represented during the procedure”.

Therefore, based on the above the Respondents action in to denying him his request to have a representative present with him at his Disciplinary appeal hearing on the 5th of May 2023 was a breach of S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

As the process that led to his sanction of a final written warning being upheld following his Appeal hearing was flawed which in turn led to an outcome that is flawed and then the sanction should be removed in its entirety.

For clarity, it is important to note that at his appeal hearing, the complainant, confirmed that he was absent from work for the amount of time as per the allegation and that he knows he should not have done so, therefore our case solely relates to points 2.1; 2.2 and 2.3 above.

In the Employment Appeals Tribunal case number UD 367/1988 of Gearon v Dunnes Stores. The tribunal held that:

“The Tribunal feels that the request of the claimant to be represented at this meeting by her trade union official should have been granted as it is possible that, with the assistance of such representation, Ms Donnelly (Respondent) may have been dissuaded from making the recommendation she made.”

“The right to defend herself (claimant) and to have her arguments and submissions listened to and evaluated by the respondent in relation to the threat to her employment is a right of the claimant and is not the gift of the respondent or of this Tribunal.”

“by not granting Ms Gearon adequate opportunity, in association with her trade union representative, to respond to the allegations, together with the ultimate haste of her dismissal, management breached the cardinal concept of natural justice.”

In the Labour Court case number CD/11/807 of. In this case the Labour Court held that:

“The Court finds that the grievance procedure in place provides for an employee to be accompanied by a fellow worker and accordingly does not comport with the provisions of S.I. 146/2000 as it does not provide for representation by “a colleague of the employee’s choice and a registered trade union”.

We refer to the Labour Court case number CD/05/344 of Dunnes Stores Tralee and Mandate. In this case the Labour Court held that:

“Having regard to the foregoing the Court is satisfied that the Employer breached the Code of Practice in refusing the three workers to whom the complaint relates the right of representation by a trade union in the proceedings leading to their dismissal. Consequently, the Court holds that the Union’s complaint is well founded”.

The complaint relates to disciplinary sanctions up to and including dismissal. The respondent submits that the complainant was issued with a lenient sanction of a final written warning which was fair and entirely appropriate.

On 21 March 2023, the complainant was invited to an investigation meetingto take place on 22 March2023inrelationtothefollowingallegation “Breachof company policyand procedures– disappearingfor4 hoursduring yourworkshift”onMonday20thMarch.Intheinviteletter,the Complainant was advised that he had the right to be accompanied at the meeting by a work colleague.

The investigation meeting took place on 22nd March with HR. At the outset of the meeting, the Complainant was asked if he would like a support person at the meeting and the complainant confirmed that he was “okto continue atthis time without a support person”.

On 23 March 2023, the complainantwas invited to a disciplinary meeting scheduled for29 March 2023, the letter, he was advised of his right to be accompanied at the meetingby a work colleague.  Themeetingwassubsequentlyrescheduledto5April2023 and at the meeting thecomplainantwasaccompaniedbya colleague.

On April 12th , the complainant was invited to an outcome meeting to be held two days later. He was issued with the outcome of the disciplinary process and was advised that he was being issued with a final written warning for a period of twelve months. He was also advised of his right to appeal the decision and given details of the respondent’s Employee Assistance Programme,

He appealed and on April 21st he was invited to attend an appeal meeting, scheduled to take place on the 28th. The Complainant was advised of his right to be accompanied by a work colleague at the meeting.  The appeal meeting was held on  May  4th.

On 12 May, the complainant was contacted and invited to an appeal outcome meeting scheduled to take place on 15 May online. At the meeting, His appeal was not upheld, and the final written warning was to remain on the complainant's file.

The respondent’s Disciplinary Policy and Procedure was submitted and  provides that at any of the disciplinary stages, an employee may be accompanied by a fellow employee of their choice. The complainant was provided with a copy of the Disciplinary Policy and Procedure in advance of the scheduled investigation and disciplinary meetings.

The Respondent submits that Si146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 specifies an employee is entitled to an 'employee representative' defined as a colleague of the employee and a registered trade union but not any other person or body unconnected with the enterprise.

It is the Respondent’s position that the Code can be satisfied by permitting a fellow employee attend disciplinary meetings, as a fellow employee falls within the definition of 'employee representative'. The trade union in this instance is an external third party unconnected with the enterprise.

The Respondent wishes to refer the Adjudication Officer to the case of O'Halloran v DunnesStores (UD1503/2009).In that case the Tribunal determined

, “the claimant contended that the respondentbreached herrightto fairproceduresinthatshewasnotallowed to havehertrade unionofficialtorepresentheratthedisciplinarymeetings...inaccordancewithS.I.146/2000 (Code of Practice on Grievance and Disciplinary Procedures). The Tribunal rejects these contentions. The respondent has a Disciplinary and Dismissal policy in place which is in general conformity with the guidelines in S.I 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures). In affording the claimant the opportunity to bring a colleague of her choice with her to the scheduled disciplinary meetings the respondent was in compliance with its own policy and indeed with clause 4 of S.I 146/2000, which defines “employee representative” as including, inter alia, a colleague of the employee’s choice.

In this case, the respondent acted in line with their Policy and Procedure and permitted the complainant to be accompanied at the meeting by a colleague of their choice, which the Complainant availed of at the disciplinary meeting.

The respondent does consider exceptions to their policy and procedures on a case-by-case basis regarding representation at disciplinary meetings where there are exceptional circumstances. In this case, no exceptional circumstances were presented by the complainant.

He did not dispute that he left his shift unauthorised and only returned to clock out after being paid for the full shift, which is clearly not acceptable. Furthermore, it is also a serious issue from a Health & Safety perspective as was discussed with him.

The respondent’s disciplinary policy and procedures states the following as examples of gross misconduct, Leaving the Company premises during a work period without permission. In cases of gross misconduct, it is stated “the company may summarily dismiss an employee without recourse to the procedure contained in Stages 1 to 4”.

Furthermore, the respondent’s Attendance and Punctuality Policy states the following “All other absences from work, including lateness and leaving before your normal finishing time(s), will be treated as unauthorised and will render you liable to disciplinary action, unless your manager has given express permission for the absence. You are required to comply with any time recording procedures relating to your areaofwork”.

At the time of this disciplinary process, the Complainant had been issued with a Written Warning in March 2023 for misconduct. Therefore, after considering all the evidence and the Complainant’s responses, it was decided that the appropriate progressive sanction in the case was a Final Written Warning.

It is the respondent’s position that a full and fair investigation took place. In line with fair procedures the complainant was informed of the allegations against him, was afforded the right to bring a colleague in line with the Disciplinary Policy and Procedure, was given the opportunity to state his case, was informed of the possible outcome of the disciplinary hearing and was afforded the opportunity to appeal the disciplinary outcome, which he availed of.

As a result of his own actions, the complainant was brought through the disciplinary procedureandissuedwithalenientsanctionofafinalwrittenwarningasanalternativeto terminationofemployment.TheRespondentissteadfastinitsviewthatthesanctionwas proportionateinthecircumstances.Afinalwrittenwarningiswellwithinthebandofreasonable responses to the allegations whichwere upheld against him.

The Respondent refers to Looney v  Looney UD843/1984in this regard, in which the EAT held.

“ItisnotfortheTribunaltoseektoestablishtheguiltorinnocenceoftheClaimant,norisit fortheTribunaltoindicateorconsiderwhetherwe,intheemployer’sposition,wouldhave acted as {the employer} did in his investigation, or concluded as he did, or decided as he did. To do so would be to substitute our own mind and decision for that of the employer. Our responsibility is to consider, against the facts, what a reasonable employer...would have done...The decision...on the basis of his reasonably held belief in the Claimant’s culpability was a decision which a reasonable employer in the circumstances could have reached”

The allegations against the complainant of leaving his shift unauthorised for four hours and not clocking out until the end of the shift resulting in being paid for those hours were upheld and in line with the Respondent’s disciplinary procedure, could have led to his dismissal. Therefore, it was entirely appropriate to have issued a lenient sanction of a final written warning.

Taking everything into consideration, it is the respondent’s position there was enough evidence provided throughout the investigation, disciplinary and appeal process to uphold that the complainant behaved in an unacceptable manner.

Furthermore, the complainant was at all times afforded all benefits of fair procedure, in line with the respondent’s policy, the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice.

In particular, he was afforded a full and fair investigation, was party to an impartial disciplinary and appeals process, the respondent reached a reasonable conclusion and the sanction for the act was appropriate and proportionate in light of all the circumstances and requests that the Adjudication Officer finds that the complainant’s claim under the Industrial Relations Act fails.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. The net issue here is a relatively simple one.

The respondent stated its position above as follows.

‘It is the Respondent’s position that the Code can be satisfied by permitting a fellow employee attend disciplinary meetings, as a fellow employee falls within the definition of 'employee representative'. The trade union in this instance is an external third party unconnected with the enterprise.’

What the code (SI146/2000) actually says is as follows.

‘For the purposes of this Code of Practice, “employee representative” includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise.’

It does not take any great skill in statutory interpretation to see that the respondent’s interpretation of the Code is wrong. The respondent appears to have conflated the reference to ‘an external third party unconnected with the enterprise’ with the trade union, but neither is qualified by the other in the text.

In other words, the right to have a trade union representative is unconditional. The respondent’s position that it will consider representation on a ‘case-by-case basis’ does not comply with the requirements of the Code.

This is a different matter as to whether any such trade union will be recognised for purposes of general representation or collective bargaining. The law on that aspect of the trade union/employer relationships is entirely separate and governed by constitutional considerations and important decisions of the superior courts.

As it stands there is no requirement on an employer to engage for those purposes.

However, there is for this purpose and, as noted, the text of the SI is unequivocal, and the respondent is obliged to comply with it.

As to whether this failure is sufficient to require a setting aside of the process there are a number of considerations

I note that the sanction was relatively light in the circumstances and in some respects, this distinguishes the case on its facts from the Gearon case relied on by the complainant.

There is also the case of Elia Erian Aziz v The Midland Health Board [1995] E.L.R. 48, where the Circuit Court held that:

“While a disciplinary body exercising quasi-judicial functions is bound to adopt fair procedures, a bona fide defect in the procedures adopted is not necessarily fatal to the legality of the ultimate decision made.

Where a defect in the procedure adopted or in the conduct of the proceedings is alleged, the applicant in order to succeed must establish that the complaint is well founded and that the defect complained of raises a reasonable possibility that an injustice may have been done.

Accordingly, where there is no reasonable possibility that an injustice may have been done to the person under investigation as a result of the defect complained of, the decision is lawful and has the same effect as it would have had if no such defect had been found.”

InLoftus and Healy -v- An Bord Telecom (13 February 1987, unreported, HC)where the High Court stated that the it was not simply a question of whether or not the employees were deprived of a fair procedure but rather “whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish … [the basis of its dismissal] as the whole or main reason for justifying their dismissal” and Pacelli -v- Irish Distillers (UD 57I / 2001)where the Tribunal stated that:

“…in determining this appeal, we must look at the substance of the complaint and beyond mere defects of form. Lavery J. in O'Mahony v. Arklow UDC [1965] I.R. 710 at p. 735, held that the Court should not, and in the respectful opinion of this Tribunal, the Tribunal should not: ‘…parse and construe rules of procedure in a narrow and unreal way, looking for some flaw in procedure to invalidate a transaction where the requirements of justice and the substance of procedure have been observed.’

As with all employment law, such matters turn very much on their specific facts, and noting the authorities above, and the important principle of whether injustice results, I am not disposed to intrude into the actual sanction itself, which I recommend should stand.

Right to representation