Worker

Employer

Anonymised Parties

An Employee

An agricultural sector employer

Representatives

Peter Glynn SIPTU

Internal HR

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 - 00001897

19/10/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The timeframe for issuing this recommendation was impacted by a family bereavement.

The worker was employed as a farm labourer. The worker was the subject of a disciplinary process, and the sanction was originally dismissal. This original sanction was overturned at an appeal hearing. The worker submitted that the sanction imposed upon him at the appeal hearing was disproportionate as regards the operational shortcomings to which he has admitted.

The appeal board handed down the following sanctions, firstly a final written warning to remain active on his file for 24 months following his resumption of duties post suspension, secondly a reduction in pay to the first point of his current pay scale to be implemented on his return to work following the period of suspension, and thirdly the worker would be required to participate in prescribed training related to animal handling and welfare upon resumption of his duties. In addition, the worker was suspended without pay for a six period.

The worker submitted that a basic rule of natural justice is that everybody has a right to be heard. It is submitted that in this case it was a mere cosmetic exercise of listening and that no due consideration or weight was given to the mitigating circumstances put forward by the worker.

The worker admitted that he struck a cow but noted that this was having received a severe kick from the cow following milking. He described this as a momentary lapse of judgement due to frustration and irritation. The worker also noted that he was transferred from one set of duties to another, resulting in a financial loss of approximately €6000.  He said that this was not taken into account in the process.

The employer’s position is that it does not accept that there was a breach of natural justice or that it did not give weight to the mitigating circumstances submitted by the worker. It submitted that it at all times complied with fair procedures throughout the process.

The employer does not accept the assertion that the sanction was disproportionate to the operational shortcomings which the worker admitted to and suggested that this categorisation lacks an appreciation of the seriousness of the conduct at the centre of this dispute. It's admitted that the organisation places a burden on staff to exercise their duties in a manner consistent with ethos and values of the organisation and although it is a minimum requirement that animals are handled with care and patience, this should not be underestimated.  The employer submitted that the misconduct admitted by the worker is not acceptable in an organisation providing agricultural education and that it has an obligation to ensure that any noncompliance with the standards it upholds is addressed appropriately.

The worker submitted that the conduct was a once off incident in at 26-year career as a mitigation point and suggested that this was not considered or given appropriate weighting. The employer noted that the worker has not provided any evidence in support of this assertion.  The worker also noted that no injury occurred to the animal however the employer noted that the complainant did not provide any evidence that there was no physical injury to the animal at the time of the incident. It submitted that even where no physical injury occurred, this does not detract from the seriousness of the conduct in question.

The employer noted that in accordance with its disciplinary process, management may take appropriate protective measures which may include reassigning staff members to other duties or placing a staff member off duty with pay.  It further noted that the sanction of suspension without pay was in the range of reasonable responses contained within its disciplinary process.

The employer noted that it adhered to the WRC Code of Practise on Grievance and Disciplinary procedures (pursuant to S.I. 146 of 2000) and that at Section 10 of that code suspension without pay is permitted.  The employer noted that the sanction imposed upon the worker was proportionate and within the range of responses which the WRC could expect from a reasonable employer to the evidence presented in the investigation and disciplinary hearings which were convened to consider the matter.  It submitted that the jurisdiction of the WRC under the Industrial Relations Acts does not extend to undermining findings by an employer where the finding is within a range of reasonable responses.

The employer relied on the case of Looney & Co. Ltd. v Looney UD843/1984, where the Employment Appeals Tribunal said that it is their responsibility to “consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.” The employer submitted that the sanctions imposed on the worker were at all times in compliance with SI 146/2000 and its own Code.

The employer also referred to the WRC decision in Employer v Employee ADJ-00000175, which considered the imposition of a sanction of a final written warning and suspension without pay in respect of a claim under the IR Acts. In issuing their determination, the Adjudication Officer stated as follows:

“In defining the parameters of my remit in relation to disputes regarding internal disciplinary matters such as the instant dispute brought under Section 13 of the Industrial Relations Act 1969, I am guided by the Labour Court decision in Bord Gais Eireann -v- A Worker AD1377 which stated: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.” I am also guided by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) which requires that the procedures for dealing with disciplinary matters reflecting the varying circumstances of enterprises/organisations must comply with the general principles of natural justice and fair procedures.” 

As a result, the Adjudication Officer determined that they did “not propose trespassing upon the merits of the disciplinary action in question against the Complainant.”

The employer submitted that the industrial relations process is not a rehearing or an appeal of an internal decision. It is an analysis of the terms of the agreed disciplinary process, and it is then an assessment of whether those terms were adhered to when the worker was disciplined. It submitted that the range of powers that are open to it and which were imposed on the worker are within a band of reasonable responses.

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

The worker admitted striking the animal in his care. He noted that this was a momentary lapse due to frustration and irritation having been kicked by the animal. He noted that the animal was not injured when he struck it.

The worker was immediately moved to different duties which resulted in him not receiving an allowance equivalent to about €6000. The disciplinary sanctions imposed on him were that he was suspended without pay for a period of six months, that when he returned he would be reduced back down to the first increment on the scale from the maximum point on the scale (which would take 13.5 years to achieve again), he was required to participate in appropriate training relating to animal handling and animal welfare, and a final written warning would be placed on his personnel file and would remain there for a period 24 months from the period when the incident occurred.

Following the reasoning in the Labour Court Decision in Bord Gais Eireann -v- A Worker I do not propose to revisit the investigation conducted by the Appeals Board in this dispute.  However, I will confine myself to considering the reasonableness of the sanctions imposed upon the worker in line with the Looney case.

In effect, five disciplinary sanctions were imposed on the worker. The employer has a disciplinary code in place which permits the imposition of an appropriate disciplinary sanction. At first instance the disciplinary sanction amounted to dismissal, however that was overturned on appeal and a number of sanctions were imposed. The disciplinary code notes 13 possible sanctions that may be imposed at two different levels - eight of those sanctions may be imposed by the relevant manager and five by what is termed the ‘appropriate authority’ -  the employers director in consultation with the human resources section. Two sanctions that are within the purview of the relevant manager were imposed – that of a level three final written warning and that of a reassignment to a different location or duties.  Two sanctions were imposed from the range available to the appropriate authority - placing the staff member on the lower rate of remuneration and suspending the staff member without pay.  I note that the employers disciplinary code repeatedly refers to the imposition of a single sanction where a breach of discipline or (serious) misconduct has been established.  The appeal process detailed in the code also refers to a singular disciplinary action.

I have had regard to the levels and nature of the disciplinary sanctions imposed upon the worker, and to the wording of the WRC Disciplinary Code of Practice, which states at paragraph 10 that disciplinary action may include:

·       An oral warning

·       A written warning

·       A final written warning

·       Suspension without pay

·       Transfer to another task, or section of the enterprise

·       Demotion

·       Some other appropriate disciplinary action short of dismissal

·       Dismissal.

The code indicates that steps in the procedure will be progressive, it does not however indicate that multiple steps may be taken as disciplinary action. In the circumstances I consider that the imposition of multiple sanctions upon the worker are unreasonable and amount to the application of excessive sanctions. That is not to say that the employers’ findings were not supportable but rather that a reasonable employer would find the sanctions imposed thereafter as excessing.

The appeal board reduced the original sanction down from dismissal and having regard to both the employers disciplinary process and to the Code of Practice, it would appear that the next step down from dismissal is a suspension without pay. However, a six-month suspension without pay does not appear reasonable in circumstances where an employee cannot seek employment elsewhere and there are additional sanctions imposed upon the worker.  I believe that this places undue hardship upon the employee.  I consider that a three-month suspension without pay is reasonable in all the circumstances.

In light of the employer’s disciplinary code, it may be that one sanction from each column is appropriate, i.e., one lesser sanction from a relevant manager and one from the “appropriate authority”.  In the circumstances I am satisfied that including a final written warning on the workers file for a 24-month period and a three-month suspension without pay convey the seriousness with which the employer regards this one-off incident.

I also consider that that in the circumstances, ensuring that the worker undergo training in animal handling and welfare is also appropriate and reasonable.

IR Acts – disproportionate sanction – multiple sanctions not reasonable – reduction in sanctions recommended