ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00002001
| Worker | Employer |
Anonymised Parties | A Worker | An Employer |
Representatives | Mr Joseph Ateb SIPTU | HR Business Partner |
Dispute:
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 - 00002001 | 21/11/2023 |
Workplace Relations Commission Adjudication Officer: Eileen Campbell
Date of Hearing: 30/05/2024
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute. The hearing was conducted in person in Lansdowne House.
As this is a trade dispute under section 13 of the Industrial Relations Act, 1969 the hearing took place in private and the parties are not named. They are referred to as “the Worker” and “the Employer”. Section 13(9)(c) of the Act provides that hearings shall be heard in private and accordingly, I direct that any information that might identify the parties within this recommendation should not be published.
The Worker attended the hearing and was represented by Mr Joseph Ateb of SIPTU. The Employer was represented by a HR Business Partner. There was a business manager and a HR representative also in attendance on behalf of the Employer.
I explained to both parties at the outset the way the hearing would proceed, and I clarified for the parties the role of an Adjudication Officer in an Industrial Relations dispute. I clarified that it is a voluntary process and that no formal evidence is taken. In that context there are no findings of fact made. I clarified there were no complaints under any employment rights statute or any matter of law before me in this referral. I explained to the parties that I would be seeking information during the hearing in order to gain an understanding of the full extent of this dispute.
I have confirmed that the Worker herein is a Worker within the meaning of the Acts, and I have conducted an investigation into the dispute as set out in section 13. It is noted section 13 of the Industrial Relations Act of 1969 empowers me to make a recommendation or recommendations to disputing parties on foot of any investigation so conducted. In making such recommendation/s I am obliged to set out my opinion on the merits of the dispute and the position of the parties thereto. Any consideration on the merits of the dispute will include an examination of the efforts made by the parties to exhaust any or all internal structures or procedures which ought to have been utilised prior to referring a dispute to the WRC. The role of the AO is to review the procedures followed by the employer and having considered all the information, to make a recommendation that is fair and reasonable and that will assist the parties in moving forward with the employment relationship.
Where applicable this investigation may involve an assessment of whether processes have complied with the general principles set out in the Code of Practice on Grievance and Disciplinary Procedures S.I. 146 of 2000.
It is confirmed internal procedures had been exhausted prior to this referral. The matter at issue in this dispute formed part of an appeal by the Worker against a disciplinary sanction. The appeal was not upheld. Accordingly, I am satisfied all internal procedures have been utilised.
No issues were raised as to my jurisdiction to hear this dispute as referred.
I can confirm I have fulfilled my obligation to make all relevant inquiries into this dispute.
Background:
This matter came before the WRC dated 21/11/2023 as a complaint seeking adjudication by the WRC under section 13 of the Industrial Relations Act, 1969. The specific complaint falls under Industrial Relations Issues Type. The Worker has a trade dispute he would like investigated. The aforesaid dispute was referred to me for investigation. A hearing for that purpose was scheduled to take place on 30/05/2024. The Worker commenced employment with the Respondent in 2020 arising from a Transfer of Undertakings. The Worker has been employed in his current site since 2002. The Worker is employed as a Cleaning Operative and works a 39-hour week for which he is currently paid €13.32 per hour. The Employer is a provider of integrated and comprehensive Facilities Management services to pharmaceutical, healthcare, manufacturing environments, educational establishments and corporate officers. The Worker submits he was issued with a final written warning. The Worker believes the warning is extremely harsh and disproportionate. The Worker seeks that the imposed sanction be rescinded in full, and some form of restitution be made for the stress this ordeal has had on him. The Employer submits that following a disciplinary procedure the outcome of a final written warning is appropriate in the circumstances. Both parties provided helpful written submissions including supporting documentation prior to the hearing for which I thank both parties. I have extrapolated the key elements of the Worker’s case and I summarise hereunder.
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Summary of Workers Case:
The Worker commenced on a Performance Improvement Plan (hereafter PIP) which commenced in April 2023. The Worker was invited to a disciplinary investigation for an allegation of “failure to meet the agreed expectations of your Performance Improvement Plan” by letter dated 20th July 2023. The Worker submits following the disciplinary investigation meeting the Employer issued the Worker with a final written warning to remain on his file until 22nd September 2024. The Worker invoked his right of appeal, and he appealed the final written warning as unduly harsh. The appeal hearing took place on 12th October 2023, and it was chaired by the Facilities Manager. The decision not to uphold the appeal was communicated to the Worker by correspondence of 24th October 2023. The Worker’s representative argues that the Employer never considered a lesser sanction especially based on the Worker’s length of service. The Worker’s representative put forward the position that sanctions are generally meant to be progressive in nature and corrective by design but that the sanction imposed was neither of those but that it was indictive of a heavy-handed approach by management with regard to a worker who has a good employment record with no record of any prior sanctions imposed on him. The Worker representative submits the Employer’s disciplinary procedure clearly states that the steps within the disciplinary procedure are progressive save for serious misconduct and it is submitted this does not fall within the scope of serious misconduct. The Worker representative submits there were a number of other options that could have been considered but there is no evidence of other sanctions being considered. The Worker representative submits a final written warning is next stage dismissal for the next wrongdoing and the imposition of such sanction does not align with company policy and is too severe.
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Summary of Employer’s Case:
The Employer submits due to the Worker’s underperformance on his contractual duties the Worker was formally invited to a Performance Improvement Plan (hereafter PIP) meeting on 12th April 2023 where his line manager followed the company PIP process and discussed areas for improvement with the Worker. The Employer submits that during this meeting the Worker was uncooperative, showing his unwillingness to acknowledge or take on board the company’s concerns and called it a with hunt. The timelines for the PIP are as follows: 06.04.23 Invitation to PIP letter 12.04.23 First meeting/PIP starts 26.04.23 Second meeting 10.05.23 Third meeting 13.07.2023 Last day of PIP 19.07.2023 Final review meeting The Employer submits the company PIP process encompasses an action plan detailing as follows: 1. Area for improvement 2. Specific improvement required 3. Measure of improvement 4. Assistance / support required 5. Date for Improvement The Employer submits a PIP was embarked on prior to any disciplinary proceeding in regard to underperformance as there was a reasonable expectation that the Worker would improve through the support mechanism of the PIP. The Employer submits the Worker took no accountability for his underperformance; he was uncooperative; and his demeanour was aggressive and that he showed no respect for the company policies. The Worker refused to sign any of the paperwork during the PIP. The Employer submits that going into a final written warning was a decision that was not taken lightly by the company but the consequences of underperformance for its business and its reputation are serious. The Employer submits the Worker had no real understanding of how his underperformance impacts on the business. The Employer submits the Worker was provided with every opportunity to improve. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.
Having listened to both parties in this dispute it quickly became apparent that even though there was at the very least a gap of mutual understanding on certain matters, there was a commendable level of willingness to engage on both sides. Attention was drawn to the relatively informal voluntary nature of the process and to my role in attempting to resolve a dispute and recommend a way forward that is fair and reasonable to both parties.
In the exercise of orderly industrial relations, it is expected that the parties should effectively utilise their agreed procedures in the first instance before initiating a referral of the matter to the WRC. I am satisfied there was meaningful local engagement in relation to this matter. The purpose of the hearing is to find a way forward for both parties which is fair and reasonable in order to maintain the employment relationship into the future.
I note the Worker was a participant in a Performance Improvement Plan. I find I could not be critical of the comprehensive nature of the company PIP which provided all the essential elements in line with what is considered best practice namely that the goals and targets were SMART. I note the goal and targets as set out were Specific, Measurable, Achievable, Realistic and Time Bound.
I note the Worker did not appear to engage with the PIP and I am satisfied the Worker was not aware of the serious nature of such a process in the context of his employment. I note the Worker did not show the necessary improvements following the PIP and this resulted in the initiation of the company disciplinary procedure. I note the Worker was fully represented by his Trade Union throughout the disciplinary process and he was fully represented in the subsequent appeal. I am satisfied the disciplinary procedure was clear and robust and is compliant with S.I. No. 674/2020 Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work).
Both parties engaged in frank and vigorous discussions during hearing sharing information and setting out their positions on this dispute from their respective perspectives.
To this end I note the commendable level of engagement on both sides which manifested itself in an agreement reached between the parties that is considered to be fair and reasonable in all the circumstances of this dispute.
It was agreed between the parties that the sanction of a Final Written Warning would be substituted by a First Written Warning to be held on file until 22nd September 2024.
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Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
For the reasons set out above I recommend the Worker and the Employer take no further action in relation to this dispute apart from implementing that which was agreed on the day.
Dated: 27th of June 2024
Workplace Relations Commission Adjudication Officer: Eileen Campbell
Key Words:
Final Written Warning; PIP; 1st Written Warning; |