Worker

Employer

Anonymised Parties

An Electrician

A Port Company

Representatives

Brian McAvinue, Connect Union

Represented by Management

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 - 00002208

12/02/2024

The worker is a qualified electrician.  He commenced working with a predecessor of the employer in 2001.  Around June 2023, the electricians and fitters in the company were required to provide evidence of their qualifications and the worker provided his craft certificate.  Shortly afterwards, he found two copies of his certificate in an office, but, in place of his name, were the names of his manager and a colleague.  In September, he raised a grievance about this and, at a meeting on November 9th 2023, he was informed by the manager who investigated his complaint that no act of wrongdoing had been identified.

At the end of the meeting at which he was given this outcome, the worker was informed that an allegation of “potential serious bullying or harassment” had been made against him and he was suspended on full pay, pending an investigation.  As part of the investigation, the investigating manager interviewed around 10 employees who work in the same department with the worker, and he decided that there were other matters related to his conduct that merited investigation.  These were described as discourtesy to customers, colleagues or management and refusal to carry out reasonable or legitimate instructions, including failure to comply with health and safety policies.  The investigating manager decided that the conduct merited a disciplinary hearing and this was conducted by a different manager on November 24th 2023.  In a letter to the worker on December 6th 2023, the manager who conducted the disciplinary hearing reached the following conclusions:

1.       He did not believe that the worker was engaged in serious acts of bullying or harassment, but he concluded that, on occasion, he had been abusive and intimidating towards others.

2.       The allegation that the worker failed to carry out reasonable instructions from management was partly proven, although there was no evidence that he did not comply with health and safety policies.

3.        The allegation of discourtesy to customers, colleagues or management was upheld as a reasonable belief by the manager that the worker was abusive and intimidating towards colleagues, including three named colleagues, two of whom were named on the fraudulent craft certificates and the third person who, according to the worker, sent these certs to the company’s head office as evidence of qualifications.

Based on these findings, the worker was issued with a written warning, to remain on his personnel file for 12 months.

The worker’s case is that the manager appointed to investigate the complaint of bullying and harassment acted unfairly by collecting additional allegations about his conduct and combining them with the initial complaint.  He claims that he had no opportunity to properly respond to the new allegations and he was given no details regarding who made the allegations or the dates and times of the incidents complained about.  He argues that this has resulted in an unfair outcome.

The employer’s position is that it was reasonable for the investigating manager, on hearing about issues of concern related to the conduct of the worker, to investigate these additional matters and that this is standard practice when conducting a disciplinary investigation.

At the hearing of this dispute on June 21st 2024, it was evident that, over the last 12 months, relations have become considerably strained in this workplace.  Having said that, it was clear to me that the managers who joined the meeting remotely took an impartial approach to the dispute and they were not negatively disposed towards the worker.  I have reviewed the documents submitted by the employer and it is apparent that many people are affected by what occurred.  I have no doubt that the information presented to me described only a fraction of what has contributed to a very contentious situation.

My role as the adjudicator is to consider the fairness of the employer’s actions, when, by gathering additional complaints in the course of an investigation into an initial grievance, the worker was not given notice or a proper opportunity to respond.  I understand from the HR managers that, as part of his investigation into the complaint of bullying and harassment, the investigating manager interviewed around 10 employees.  I understand also that only three of these employees, all of whom were involved in the falsification of the craft certificate, made statements on the record.  The worker said that he provided statements from 32 employees, including some former staff, all of whom were positive about their engagement with him.

On December 6th 2023, the disciplinary manager made findings of abuse, intimidation and undermining of management.  For any reasonable person, these are extremely serious findings, having implications for the good name and reputation of an employee, for their future job security and possibly even more serious outcomes.  In advance of reaching such a conclusion, a manager is obliged to present the information available to them, to allow the subject of the investigation to challenge the information and to allow them to respond.  I am not satisfied that these essential aspects of procedural fairness were followed in this case.

I recommend that the written warning issued to the worker on December 6th 2023 is withdrawn.  I further recommend that the allegations that were the subject of the disciplinary hearing on November 24th 2023 are formally presented to the worker, with information supporting each allegation and that, before consideration is given to a disciplinary sanction, he is given an opportunity to respond. 

Procedural fairness