Worker

Employer

Anonymised Parties

A Worker

A Garage

Representatives

SIPTU

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 - 00002287

29/02/2024

The Worker commenced employment on 17 October 2016. On 10 September 2022, the Worker failed to notice rust on a vehicle (“the incident”). The Worker acknowledged this over sight at the time and apologised. The Worker was subsequently disciplined and received a final written warning. The Worker believes this sanction of a final written warning was disproportionate and unreasonable for several reasons:

1.      There were significant delays in the process, including: (i) There was an inexplicable delay in dealing with the incident as a disciplinary issue. On 10 September 2022, the incident occurred. He was spoken to in relation to the incident on 25 September 2022 and was told he had to be retrained on rust detection. He understood that the matter rested there. However, on 7 November 2022 he was invited to an investigation meeting in relation to the incident. There was no apparent reason for this delay. No performance issues arose in the intervening period. Nor was the Worker absent from work. The Worker is at a loss as to why, if the matter was as serious as subsequently contended by the Employer, the issue not dealt with any sense of urgency. (ii) The outcome of the disciplinary investigation was not made known to the Worker until 27 February 2023 despite the Worker being at work. No reason was given for this delay. (iii) A disciplinary hearing took place on 23 March 2023. Notably, the Worker was promoted to a team leader at this time. The Worker was issued with a final written warning on 3 April 2023. He appealed the warning immediately, however, 10 months elapsed before an appeal hearing took place in January 2024. This delay is inexcusable. The Company failed to follow the Disciplinary Procedure in relation to the timeline for the holding of an appeal.

2.      It was not until the final written warning was issued, did the Employer categorise the incident as serious. The actions of the Employer up to the issuing of the warning was not indicative of an Employer who regarded the incident as serious.

3.      The appeal hearing only lasted minutes and the appeal manager failed to consider several mitigating factors put forward by the Worker.

4.      The Disciplinary Procedure provides for the giving of reasons for not upholding an appeal. The Worker has not received the reasons for not upholding his appeal despite the union and the Worker requesting same.

5.      The sanction of final written warning was grossly disproportionate in the circumstances. The Worker has an unblemished record with the Employer since commencement of his employment in 2016. He had been acting up as a team leader since May 2022 and was appointed as a team leader in May 2023. Further, he admitted missing the rust immediately and apologised for same.

6.      Even if the warning was warranted, the delay in giving same in and of itself should have led to the warning being expunged from the Worker’s file.

The Worker accepts the final written warning expired on 22 March 2024; however, the Worker submits that the issue is not moot as he believes the final written warning may have been taken into consideration by the Employer in moving to dismiss him on 8 March 2024, following another issue arising. The Worker does not know if the final written warning was actually taken into consideration as it is not clear from the documentation surrounding his dismissal. The Union submitted it was essential that this dispute in relation to the issuing of the final written warning be referred to the WRC, else the Worker would be deemed to have accepted the final written warning when he had not.

The Worker confirmed that this dispute relates only to the issuing of the final written warning. The Worker wants the sanction of the final written warning removed from his file so that it could not have been an operative factor in the decision to subsequently dismiss him from his employment.

The Employer did not attend the hearing. On 4 July 2024, the Employer contacted the WRC to advise it would not be attending the hearing as there are “another 2 hearings for this employee an Unfair Dismissal Case and a Payment of Wages case”.

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

This dispute before the WRC is not a matter of law and the role of the WRC in the hearing of industrial relations disputes is to hear the parties and give its opinion on how the matter can best be resolved. The Worker referred this dispute to the WRC on 29 February 2024 after the outcome of an appeal hearing in relation to the issuing of a final written warning was made known to him. However, since the referral of this dispute matters have moved on. While I appreciate that the Worker does not regard the issue of the reasonableness and the proportionality of the sanction as now being moot, the Worker confirmed that the subject matter of this dispute is closely related to a complaint under the Unfair Dismissals Acts, 1977 – 2015, currently awaiting hearing before the WRC. Therefore, I recommend the Worker accepts that the industrial relations process is not the appropriate forum to address this dispute, given the subject matter of this dispute will be ventilated before the WRC under an employment rights claim.

I recommend the Worker accepts, given the circumstances of this case, that the industrial relations process is not the appropriate forum to address this dispute.

Final written warning. Disproportionate warning.