LCR22860

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044930 (CA-00000055732, SC-00001197).

BACKGROUND:

The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 8 September 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969.  

On 16 August 2023 the Adjudication Officer issued the following Recommendation:

  “I recommend that the Worker fully consider the implications of disclosing allegations of a personalnature relating to other current or former members of staff of the Council under GDPR and possible consequences for the Worker were these allegations not to prove accurate. The Worker contested that he has not made any protected disclosures. The allegations raised by the Worker to the Chief Executive in emails between 31st May 2023 and 19th June 2023 have now been submitted by the Employer for consideration under the Protected Disclosure Act (and were not the subject of this Hearing and were not versed at the Hearing) and I recommend, as is the Employers intention, to consider these allegations under the Protected Disclosures Act. I see no justification to recommend a new investigation or that the disciplinary action be overturned. I find in favour of the Employer.’’  

A Labour Court hearing took place on 3 November 2023.

DECISION:

This is an appeal by the Worker from a Recommendation of an Adjudication Officer (IR-SC-00001197, dated 16 August 2023) under section 13 of the Industrial Relations Act 1969. Notice of Appeal was received in the Court on 8 September 2023. The Court heard the appeal in Limerick on 3 November 2023.

Background to the Dispute

The Worker is a Senior Staff Officer with Clare County Council (‘the Respondent’) where he has been employed since 2005. In the within proceedings, the Worker takes issue with a written warning served on him by the Respondent on 27 September 2022 under the Respondent’s Disciplinary Policy and Procedure. He submits that the Respondent failed to adhere to its own written procedures when it issued the written warning in question.

The events that culminated in the Respondent’s decision to issue the warning letter of 27 September 2022 date back to 16 June 2022 when the Worker sent an email to the Cathaoirleach of the Respondent Local Authority in relation to the appointment of a named colleague of the Worker as Acting Director of Services. The Worker’s communication to the Cathaoirleach contained confidential employee information and made a number of disparaging allegations about the named colleague. The Worker was instructed by the Chief Executive of the Respondent that his communication to the Cathaoirleach was inappropriate as the issues he had raised were exclusively within the remit of the Executive. The Worker, nevertheless, continued to communicate with the Cathaoirleach on several occasions up until circa mid-August 2022. This in turn prompted replying correspondence from the Chief Executive and the Respondent’s Human Resources Department to the Worker.

On 16 September 2022, the Respondent wrote to the Worker inviting him to attend a disciplinary meeting on 22 September 2022. The letter detailed the issues which were the subject of the disciplinary proceedings, included a copy of the Respondent’s Disciplinary Policy and advised the Worker of his right to representation at the disciplinary meeting. On even date, the Worker replied declining to attend the scheduled disciplinary meeting. There followed several written exchanges between the Worker and Human Resources up until 22 September 2022. The Worker did not attend at the disciplinary hearing on that date and nor did he furnish the Respondent with a valid reason for his failure to do so.

The Respondent proceeded to issue the Worker with a warning letter dated 27 September 2022. The letter recited the details of the extensive communications that had been exchanged between the Worker and the Chief Executive from mid-June 2022 onwards and the instruction given on a number of occasions by the Chief Executive to the Worker requiring him to desist from communicating with the Cathaoirleach in relation to matters concerning an employee of the Respondent. The warning letter of 27 September 2022 states, inter alia:

“The Human Resources function and all matters relating to employees of Clare County Council is a function of the Executive in which the elected members have no role. All employees of Clare County Council are entitled to confidentiality in any dealings with their employer and your involvement of persons outside of the designated Human Resources personnel of the Clare County Council executive breaches this confidentiality.

These acts of insubordination, where you have proceeded to send correspondence in flagrant breach of the grievance policies and procedures set down by Clare County Council and where you defied three clear directions of the Chief Executive and the Head of Human Resources, is totally unacceptable and is deemed to be misconduct. By your actions you have potentially brought Clare County Council into disrepute and this is unacceptable.

In line with the Clare County Council Disciplinary Policy and Procedures (copy enclosed), the expected work standards have not been achieved by you. Your actions are deemed by Clare County Council to be misconduct and the purpose of this letter is to provide you with a formal written warning in line with Clause 9.5 of the Disciplinary Policy.

Stage 2 of the Disciplinary Policy is being invoked at this time in line with Clause 9.5 as the “conduct … warrants proceeding straight to written warning stage”. Disciplinary action at this level is necessary given the seriousness of the unsatisfactory conduct.

This written warning will be placed on your personnel file and will remain active for a period of 12 months.”

The letter concluded by advising the Worker of his right to appeal the decision to Mr Liam Conneally, Director of Services, within 10 working days of the date of the letter. The Worker engaged thereafter in extensive communication – in writing and by telephone - with the Head of Human Resources about the disciplinary process and its outcome. He did not, however, avail himself of his right to appeal the written warning to Mr Conneally within the ten-day period specified in the letter of 27 September 2022 although he did write to Mr Conneally seeking a three-month extension of the period for bringing an appeal.

Submissions

Counsel for the Worker identified three central issues of concern to his client for the purpose of the within appeal:

(a) Correspondence from the Head of Human Resources to the Worker in September and October 2023 in which there is a direct reference in the first communication to the written warning received by the Worker on 27 September 2022 and an implied reference, according to Counsel, to that warning again in the October 2023 letter, notwithstanding the expiry of the warning on 26 September 2023.

(b) The strenuous efforts made by the Worker, according to Counsel, to engage with the proposed disciplinary process in September 2022 through his numerous requests for information from the Respondent. In Counsel’s submission, the Respondent ought to have delayed the disciplinary meeting until it had fully dealt with the Worker’s requests.

(c) Likewise, according to Counsel, the extensive communication exchanged between the Worker and the Head of Human Resources in the days following the issue of the written warning on 27 September 2022 is ‘evidence’ of the Worker’s attempt to engage with the appeal process as was his request for an extension of three months within which to initiate his appeal.

In reply, Counsel for the Respondent submitted as follows:

(a) He accepts that there was a reference to the written warning on the Worker’s personnel file in the Head of Human Resources letter of 7 September 2023 but no exception can be taken to this, in his submission, in circumstances where the warning was still active. Counsel does not accept that there is any reference, by implication or otherwise, to the expired warning in the Head of Human Resources letter of 2 October 2023.

(b) Counsel submits that the Worker’s suggestion that he was actively seeking to engage with the disciplinary process is not credible in circumstances where, in his submission, the letter inviting him to the disciplinary meeting had set out the allegations against him clearly and in sufficient detail.

(c) Counsel submits that the proper course of action that the Worker should have followed in the event that he required additional time to prepare for any appeal of the disciplinary outcome was to refer his appeal within the specified timeframe and then make his request for additional preparation time.

Discussion and Decision

The Court received comprehensive written submissions from both Parties in this matter which it has considered in some detail. The Court also has had the benefit of considered verbal submissions on the issues in dispute ably presented by Counsel for each Party.

The Court finds that issue

(a) as identified by Counsel for the Worker relates to events that occurred after the dispute was referred at first instance and does, therefore, come within the scope of the within proceedings.

(b) The Court, having reviewed the letter inviting the Worker to the scheduled disciplinary hearing, and having regard to the events that occurred from 22 June 2022 onwards and in which he played a central role, finds that the Worker could not have been in any doubt about the disciplinary allegations facing him. The Court further finds that the Worker’s unilateral decision to decline to attend a disciplinary meeting was unjustified and unacceptable.

(c) The Court agrees fully with the position articulated by Counsel for the Respondent in relation to the appeal stage: the Worker - had he genuinely intended to appeal the written warning imposed on him – should have initiated the appeal within the period specified in the disciplinary letter and, if necessary, he could have sought additional time to prepare himself to present his case on appeal.

For the foregoing reasons, the Court upholds the Adjudication Officer’s Recommendation.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
17 January 2024	Deputy Chairman