Worker

Employer

Worker

Employer

Anonymised Parties

A Worker

A Manufacturer

Representatives

Julia Sweetnam Worker's Rights Centre, SIPTU

Ciar Murtagh , IBEC Executive

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 - 00001697

21/08/2023

The case came for hearing on 29 January 2024, on the remote platform in accordance with the provisions of the Civil and Criminal Law (Miscellaneous Provisions) Act, 2020, as amended.

On 28 January 2023, SIPTU, the Workers Union submitted a request to investigate a Trade Dispute surrounding the application of a written warning to him on 12 December 2022.

The Employer did not object to this proposed investigation and the case came to hearing on 29 January 2024 on the Remote Platform.

In my preparation for hearing, I noted an omission on part of the employer submitted outline and I am grateful that this was rectified prehearing.

Both parties were represented at hearing, the Worker by his Union, SIPTU, and the Employer by their representative, IBEC. Both parties filed helpful written submissions.

The claim was introduced as an appeal of a written warning.

The Worker comes to the case with two titles in the workplace, a Manufacturing business.

1 General Operative for 26 years

2 Shop Steward for 15 years

I will refer to these roles as dichotomous.

On 23 November 2022, the Employer provided the Worker with a complaint received from a member of staff, to whom he reported, regarding his actions and behaviour in the workplace.

 The Employer confirmed that the 16 November 2022 complaint of harassment would be investigated locally.

The Worker refuted the allegations in the complaint. His case was that the origin of the conflict had occurred some two weeks previously, where some unease had occurred on the evening shift. The Union submitted that the worker had approached the Manager as an advocate for another worker and that he was “wearing his shop steward hat “rather than his employee status. The Union stated that it was plain for all to see that this was a Union issue. They maintained that the Worker had been seeking to resolve a conflict and the Manager had overreacted.

The Investigation upheld the complaint and recommended disciplinary action.

The Union took issue with the haste associated with commencing the Investigation. The Worker did not bring a representative to this forum.

The Union sought clarification from the General Manager and sought to defer the Disciplinary process. The Employer was keen to press ahead, and the disciplinary meeting occurred on 8 December 2022.

Once again, the Worker refuted the allegations, but the Employer concluded that the colleague employee had been harassed by the worker and a written warning decided on the 8th, but dated 12 December 2022 was placed on his file.

The Union took issue with the findings with the absence of the “Dignity at Work Charter “from the process, the proximity of the investigator to the HR Manager, spouse of the complaint scribe and the absence of witness statements.

The Union appealed the written warning on 14 December 2022 and an Appeals Meeting was conducted a week later.

The Appeal outcome issued on 15 June 2023.

“ .. we believe that the written warning for breach of dignity at work policy was warranted …. “

The Union was taken aback and contended that the grounds of appeal were not heard by the Employer.

The Union contended that the complaint of “harassment “was unfounded as the encounter between the parties cited did not constitute harassment.

There was a paucity of shared documentation, where only one witness statement was shared post activation of the written warning.

The Union argued that the procedural pathway surrounding the investigation through to Disciplinary sanction and onto the Appeal was not “well structured “and contravened natural justice.

The entire process was unnecessarily protracted to an 8-month timeline.

The Union declared that they sought an expungement of the written warning to mean that it was “removed in its entirety as if it had never happened “

The Union accepted that the written warning had expired but contended that the worker had remained on tenterhooks throughout the process, fearing that something similar could re-occur in his workplace.

The Worker had not been notified of the formal expiration of the written warning.

The Employer operates an Ophthalmic product Manufacturing plant as part of a worldwide group and employees over 200 employees. I can see from the file that the Employer was dealing with operational challenges during the period of this claim.

The Employer has requested that the claim should not be heard at first instance. The Employer contended that the written warning present on the Workers file was expired in time and must be recognised as null and void and “therefore it is a pointless exercise. “With reference to Adjudication.

IBEC advanced considerable jurisprudence and Industrial Relations precedents for this viewpoint.

“The Court cannot expunge something that no longer exists “

The Employer has introduced the Worker as a Lead Operator and present at the Plant since 1999 on a full-time basis.

It was their case that the Plant received a formal complaint from the Evening Shift Supervisor against the Worker on 16 November 2022. The complaint was exhibited in full and arose as a complaint of harassment. The Complaint was provided to the Worker and centred on the Supervisor describing being humiliated “a number of times in front of one of the operators “

The matter was fully investigated and found that the complaint was upheld with a conjoined recommendation that disciplinary action follow.

This resulted in a written warning for breaches of the Employers Dignity at Work Policy from 12 December 2022 to 12 December 2023, with an opportunity to appeal to the Plant General Manager.

An appeal followed from the Union. This Appeals Panel met with all parties involved and upheld the sanction on 15 June 2023.

The Employer contended that the worker had been afforded fair procedures and natural justice in the management of this complaint. He was afforded representation at all stages but desisted at the investigation stage. He was provided with an adequate opportunity to respond to the complaint and influence the outcome. The matter was fairly and impartially determined, and the worker was permitted a comprehensive appeal.

IBEC submitted that the Adjudication process should focus on whether the Employer had acted fairly rather than an imposition of an opinion on whether an alternative outcome should flow.

IBEC contended that an order to expunge had no merit in this case as the warning had expired.

Cordial working relationship existed between the complainant and the worker as he currently reported to him on a number of occasions during the working week.

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

My role in this case is fairly described in Section 13(1) of the Industrial Relations Act, 1969, where Adjudicator is substituted for Rights Commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

I am bound to investigate the claim made.

I must reflect that the Employer had not objected to the claim coming for Adjudication prehearing.

I have listened very carefully to the Parties at hearing. I have reflected on the points made by both committed representatives.

I am satisfied that the case before me is an unresolved Workplace Dispute. It has lingered for both parties and as both parties are active in an enduring working relationship, I have endeavoured to reflect this in my findings.

I engaged in some very helpful exploratory discussions with both parties at hearing on a possible and mutually agreeable way forward in this case. I am grateful for these honest contributions.

In a careful analysis of the oral and written submissions in the case, I have identified procedural deficiencies on both sides which render the written warning unsafe.

In the main, the true background and context of what happened in the workplace has been omitted in this case.

The Worker has a dual role in the workplace, that of employee in the first instance and that of shop steward in the second.

What happened in this case is that insufficient weighting was applied to the nature of the conversation on November 16 as I accept that the dialogue constituted an attempt at advocacy for a colleague, which ironically was effective in terms of resolution. However, it prompted the submission of a formal complaint on the same day.

The scribe of the November 16, complaint was the Workers Manager.

I found an insufficient regard from the Employer for that hierarchical power base and for the spirit of the Disciplinary procedure to be based on corrective action.

It is not lost on me that this is a Manufacturing Plant and conflict resolution must have a readily identifiable pathway close to the point of origin, which is understood by all.

I had raised some concerns of the incompleteness of the Employers Appendix 7.

I have since identified some helpful pointers from a manager, participant with some stated unease at the Investigation. He had directed the process towards a broad circulation of grievance procedure and dignity at work policy and drew the distinction between the utterances by the worker as shop steward and those of his utterances as an employee.

This astute observation goes to the core of this case, and I would have liked to have met this Manager at hearing.

I found a lack of clarity around the Investigation conducted.

I found that the Worker did not emphasise as strongly as I would expect that his actions on November 16 arose from advocacy and to seek the clear protections available to him while active on conflict resolution duties.

I must find that the Employer mis cast him from November 16 onwards as a result.

I found that the Worker missed an opportunity to seek the pro offered representation at investigation, albeit that the same investigation was rushed.

I found a declaration of a disciplinary sanction during the disciplinary hearing rather than in its aftermath.

I found an outdated disciplinary procedure which permits a written warning to be commuted to a verbal warning after 12 months.

I found that the Employer had not notified the Employee of the cessation of the warning on either the 8th or 12 December 2023.

However, I have also found that conflict can be creative. I see no basis for either party to engage in an extended look back here. For me to conclude with an expungement would deny the Parties an opportunity to build on the past.

There is a live dichotomous working relationship, which needs new designs around the dual roles held by the employee in this case.

I take the unusual step of incorporating the WRC Code of practice for both parties to consider in this case. I realise that the document is instantly accessible online, but I find it of immediate relevance in this case and request that the Parties read it to allow the dichotomous role some air space and further thought by them.

Duties and Responsibilities of Employee Representatives

1. INTRODUCTION

Section 42 of the Industrial Relations Act 1990 makes provision for the preparation of draft codes of practice by the Labour Relations Commission for submission to the Minister for Enterprise and Employment. The main purpose of this Code of Practice is to set out for the guidance of employers, employees and trade unions the duties and responsibilities of employee representatives (frequently referred to in trade union rule books and employer/trade union agreements as shop stewards) and the protection and facilities which should have afforded them in order to enable them to carry out their duties in an effective and constructive manner.

When preparing this Code of Practice, the Commission held meetings and consultations with the Irish Congress of Trade Unions and the Irish Business and Employers Confederation. It also consulted with the Departments of Enterprise and Employment and Finance. The Commission has taken account of the views expressed by these organisations to the maximum extent possible in preparing this Code. It has also had regard to the procedures and practices applied in undertakings and establishments which have pursued sound industrial relations policies and to the provisions of trade union rule books.

2. GENERAL

1. Employee representatives, for the purpose of this Code, are.

a) employees of an undertaking or establishment who have been formally designated employee representatives for that undertaking or establishment by a trade union in accordance with the rules of that trade union and any employer/trade union agreement which relates to the appointment of such representatives in that undertaking or establishment and

b) who normally participate in negotiations about terms and conditions of employment for all or a section of the workforce and who are involved in the procedures for the settlement of any disputes or grievances which may arise in that undertaking or establishment.

Reference to trade unions throughout this Code includes reference to “excepted bodies” under the Trade Union Acts, 1871 – 1990. An “excepted body” is a body which may lawfully negotiate wages or other conditions of employment without holding a negotiation licence. “Excepted body” is defined in section 6(3) of the Trade Union Act 1941, as amended, and includes an association, all the members of which are employed by the same employer.

1. The duties and responsibilities of employee representatives and the protection and facilities to have afforded them under this Code are indicative of the important position and role of such representatives in our system of industrial relations and in the resolution of disputes/grievances. The manner in which employee representatives discharge their duties and responsibilities significantly affects the quality of management/labour relations in the undertaking or establishment in which they work, its efficient operation and future development.

3. DUTIES AND RESPONSIBILITIES OF EMPLOYEE REPRESENTATIVES

3. The principal duties and responsibilities of employee representatives include -

a) representing members fairly and effectively in relation to matters arising within the undertaking or establishment in which they work and which concern employment and conditions of employment

b) participating in negotiation and grievance procedures as provided for in employer/trade union agreements or in accordance with recognised custom and practice in the undertaking or establishment in which they work

c) co-operating with the management of the undertaking or establishment in ensuring the proper implementation and observance of employer/trade union agreements, the use of agreed dispute and grievance procedures and the avoidance of any action, especially unofficial action, which would be contrary to such agreements or procedures, and which would affect the continuity of operations or services

d) acting in accordance with existing laws and regulations, the rules of the union and good industrial relations practice; liaising with and seeking advice and assistance from the appropriate full-time trade union official

e) having regard at all times to the safe and efficient operation of the undertaking or establishment

f) subject to any other arrangements made between an employer and a trade union, employee representatives should conform to the same job performance standards, company rules, disciplinary conditions and other conditions of employment as comparable employees in the undertaking or establishment in which they work.

4. ELECTION OF EMPLOYEE REPRESENTATIVES

4. Employee representatives should be elected/designated in accordance with the appropriate trade union rules and procedures and, where relevant, in accordance with employer/trade union agreements. These procedures and agreements should ensure that such representatives will be representative of the trade union members concerned. Such representatives should normally have a minimum of one year’s service in the undertaking or establishment concerned; their appointment as employee representatives should be confirmed in writing by the union to the employer and the union should provide relevant information, advice and training to employee representatives on their principal functions and duties. Nothing in this Code precludes an employer from providing additional training.

5. The number of employee representatives should be reasonable having regard to the size of the undertaking or establishment concerned, the number of trade union members employed and the structure of trade union organisation within the undertaking or establishment.

6. Following notification of the appointment of an employee representative, the employer should provide the representative with relevant information about the normal procedures for communicating with the appropriate representatives of management.

5. PROTECTION OF EMPLOYEE REPRESENTATIVES

7. Employee representatives who carry out their duties and responsibilities in accordance with paragraph 3 of this Code should not:

a) be dismissed or suffer any unfavourable change in their conditions of employment or unfair treatment, including selection for redundancy, because of their status or activities as employee representatives, or

b) suffer any action prejudicial to their employment because of their status or activities as employee representatives, without prior consultation taking place between the management and the relevant trade union.

Where it is established that an employee representative has been dismissed in contravention of the provision at (a) above such representative should normally be re-instated.

8. Section 7 of this Code is without prejudice to the provisions of the Unfair Dismissals Acts 1977 and 1991.

9. Where an employer considers that an employee representative has acted or is acting beyond the usual authority and functions of an employee representative as set out in paragraph 3 or in a manner which is damaging to the undertaking or establishment, the employer should, in the first instance, take the matter up with the employee representative concerned and failing satisfaction at that level with his/her trade union.

6. FACILITIES FOR EMPLOYEE REPRESENTATIVES

10. For purposes of effectively ensuring the provision of reasonable facilities for employee representatives in accordance with paragraph 11 below, employers and trade unions should enter into agreements at the level of the undertaking or establishment which would incorporate the following provisions suitably adapted to the circumstances of the particular undertaking or establishment as referred to in paragraph 12 below.

11. Employee representatives should be afforded such reasonable facilities as will enable them to carry out their functions as employee representatives promptly and efficiently and in accordance with paragraph 3.

12. The granting of such facilities should have a regard to the provisions of paragraph 5 and especially to the needs, size and capabilities of the undertaking or establishment concerned and should not impair the efficient operation of the undertaking or establishment.

13. Employee representatives should be afforded necessary time off for carrying out their representative functions in the undertaking or establishment in which they work. In the absence of formal standing arrangements, employee representatives should obtain prior permission from an appropriate representative of management. Such permission should not be unreasonably withheld. Reasonable limits may be set on the amount of time off.

14. On the same basis as at paragraphs 10 and 12 above, employee representatives should be granted reasonable time off for trade union meetings and training courses which relate to their activities as employee representatives.

15. The question of payment of wages in respect of time off for any of the purposes set out at paragraphs 13 and 14 above should be the subject of discussion in advance at the level of the undertaking or establishment.

16. Employee representatives in the undertaking or establishment should be granted reasonable access to all workplaces where they represent trade union members and where such access is necessary to enable them to carry out their representative functions.

17. Employee representatives should have access, without undue delay, to management at the appropriate level on matters relating to their representative functions and responsibilities.

18. In the absence of check-off arrangements, employee representatives should, by agreement, be permitted to collect union dues regularly in the undertaking or establishment.

19. Employers and trade unions should agree arrangements whereby employee representatives, acting on behalf of their trade union, should be permitted to post notices relating to normal activities of the union in the undertaking or establishment in a place agreed with management to which employees have easy access.

20. Employee representatives, acting on behalf of their trade union, should be permitted to distribute non-political news sheets, pamphlets, publications and other documents relating to normal trade union activities amongst the members of the union in the undertaking or establishment.

21. The use of the facilities referred to in paragraphs 19 and 20 above should have regard to the orderly operation and tidiness of the undertaking or establishment.

22. Management and trade unions should agree on the particular information and facilities which should be made available to employee representatives to enable them to carry out their functions and responsibilities in accordance with this Code.

Having heard from all parties to the Dispute, I have identified procedural deficiencies on both sides, which have militated against an earlier resolution.

I have found some merit in the Dispute.

Appeal of Disciplinary Sanction.