Worker

Employer

Anonymised Parties

An Inspector

A Police Force

Representatives

Lars Asmussen BL instructed by  Sean Costello Solicitors

Employee Relations Manager

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 - 00002605

07/05/2024

The Worker, who is employed as an Inspector, stated that he was unfairly issued with an informal warning, specifically a Regulation 10 notice under the Employers’ Disciplinary Regulations, on 8 May 2023. He is seeking that the warning be expunged from his personnel file.

On 8 May 2023, following the conclusion of a meeting, the Worker was asked by his Superintendent to remain behind. The Superintendent then told the Worker in an agitated manner that he was “not going to play table tennis” with him over emails. When the Worker inquired into what emails he was referring, his Superintendent stated that he needed to know everything about a compensation claim, referring to an ongoing investigation into a claim for compensation made by a police colleague, X.

The Worker stated that he did not need to know of such matters and, by avoiding knowledge of such matters, was ensuring the integrity of the investigation as well as his and that of his Superintendent. His Superintendent became increasingly agitated and demanded that the Worker tell him this information. The Worker refused, stating that what he was asking him to do was wrong. Realising that his Superintendent might not have been aware of same, the Worker then brought to his attention a recent email from HR confirming that information in relation to the investigation of X’s claim, which had been sought by the Superintendent, was not being released to him. The Worker then left the room.

Later that day, the Worker wrote to the Superintendent regarding correspondence with a civilian, Mr Y, about the progress of his police vetting. The Worker confirmed that he had assured Mr Y that he could not see any difficulty arising in relation to the vetting. In response, the Superintendent wrote to the Worker querying: “Is Mr Y happy with the response”? In response, the Worker replied, stating: “With reference to the above please find attached correspondence returned. I cannot comment on Mr Y’s emotions”. At 2:30 PM on 8 May 2023, the Superintendent called the Worker to his office. Thereon, he immediately challenged the Worker on the ‘Y’ correspondence, stating “are you trying to be smart with me?” The Worker stated that his response had been a straightforward attempt to answer the question asked of him to the best of his ability.

The Superintendent stood up and directed the Worker to close the office door. The Worker stated that he was not comfortable closing the door or continuing the conversation in this manner and requested that his union representative be present. The Superintendent then walked past the Worker and closed the door, saying that he didn’t want others hearing what he would say. The Worker again insisted that the conversation not progress in this manner and without his union representative being present.

There was no further discussion with or information provided to the Worker regarding how his behaviour or response to the query regarding Mr Y’s emotional disposition was being deemed inappropriate.

At 4:25 PM on 8 May 2023, the Superintendent entered the Worker’s office with a piece of paper. He placed it on the Worker’s desk and stated that he was disciplining the Worker pursuant to Regulation 10. The Worker attempted to explain that he was not comfortable with such an interaction occurring without the present of his union representative; however, the Superintendent interrupted, shouting at the Worker that “I am your Superior Officer you will be quiet and listen to me, you might not respect me, but you will respect my rank”. When the Worker attempted to re-iterate his aforementioned concern, the Superintendent interrupted him, forcibly reading the content of the document over his voice and demanding that he sign it. The Worker stated that he would not accept or sign the document, that he had done nothing wrong and that he first needed time to speak with is association representative or solicitor. The Superintendent took up the document and walked towards the door. He then suddenly turned, threw the document at the Worker and told him “talk to who you like, you are disciplined”. The document stated that it had been issued by the Superintendent pursuant to Regulation 10 for the Worker having demonstrated “misconduct” towards the Superintendent in the form of “insubordination by way of communication on file XXX…on the 08/05/2023”. The document stated that the matter was being dealt with by way of the issuing of a penalty of a “warning”.

The Worker maintains that the issuing of this disciplinary sanction in these circumstances was fundamentally unfair, unreasonable, in breach of his right to fair procedures and due process and in breach of the Disciplinary Regulations. In particular, the Worker maintains that:

a) He had not been placed on notice of any disciplinary process being invoked prior to the execution this warning;

b) Particulars of his purported misconduct or insubordination had not been adequately particularised to him either before, during or after the execution of this warning. While the document referred to him displaying ‘insubordination by way of communication on file on 8 May 2023’, presumably referring to the Y correspondence, it failed to provide any context or explanation as to how his correspondence as such was in any way inappropriate or displaying insubordination ;

c) The Worker was not given any right of reply or opportunity to make representations prior to the execution of this warning;

d) The Employer failed to conduct any investigation or issue any finding in relation to this purported misconduct. In this regard, it is noted that Regulation 9 of the Disciplinary Regulations explicitly states that a standard of proof is one of the balance of probabilities and that same applies in any disciplinary proceedings which includes, by definition, proceedings pursuant to Regulation 10;

e) The Employer failed to provide the Worker with reasons for its decision to uphold a finding of purported misconduct and insubordination, meaning that the Worker, to date, is a stranger to the rationale for same ;

f) The Employer failed to afford the Worker a right to appeal this finding and outcome, a matter subsequently confirmed by the Respondent’s Industrial Relations Division ;

By letter dated 9 May 2023, Seán Costello Solicitors, acting for and instructed by the Worker, wrote to the Superintendent, raising concern with the manner in which the Worker had been disciplined by him. The Superintendent and the Employer failed to respond to this correspondence.

By email dated 14 July 2023, the General Secretary of the Worker’s union, wrote to the Chief Superintendent, attaching a letter and the Worker’s formal Form grievance regarding this matter pursuant to Stage 1 of the Respondent’s procedure. The General Secretary stated that the matter had caused profound upset and stress on the Worker and asked for the matter to be dealt with by early response.

By decision dated 22 January 2024, a Chief Superintendent issued his findings in relation to the Worker’s Stage 1 grievance. Therein, he stated that, while the Superintendent had accepted the Worker’s version of events regarding the fact of their meeting on 8 May 2023 and regarding the content of an email, he refuted having closed the door against the Worker’s wishes, refuted having raised his voice at the Worker, refuted having forcibly read the document to the Worker, refuted having told the Worker to sign the document or threw the document at the Worker and refuted telling him he had been disciplined. He stated that there was no provision in the Disciplinary Regulations permitting a policeman to have a representative present during a Regulation 10 disciplinary process. He stated that, on this basis, he was refusing to uphold the grievance. 

The Worker appealed this outcome to Stage 2 of the Employer’s procedure and met with an Assistant Commissioner, on 13 March 2024 to discuss same. By decision dated 25 March 2024, the Assistant Commissioner issued her findings in relation to the Worker’s Stage 2 grievance. Therein, she rejected his grievances, finding that: there was no right to representation in matters relating to a Regulation 10 Disciplinary Process; there was no right to appeal the outcome of a Regulation 10 Disciplinary Process; that the Superintendent had put the Worker on notice of the underlying issues that resulted in the Regulation 10 Disciplinary Process during their earlier meeting on the morning of 8 May 2023; and there was no further evidence of the Superintendent having conducted himself in an aggressive manner on 8 May 2024, meaning same could not be upheld.

The Worker maintained that the Assistant Commissioner’s findings were  fundamentally unfair, unreasonable and in breach of the Respondent’s Dispute Resolution Procedures in that it: a) the Assistant Commissioner determined that the Worker had been placed on notice of the invocation of the disciplinary process when she found that, during their meeting on the morning of 8 May 2023, the Superintendent discussed with him “the completion of tasks which he indicated formed part of the basis for issuing a Regulation 10”. The Worker disputes any such discussion or notification to him of such issues during this morning meeting. What was discussed at that morning meeting was the issue of the X Investigation, a matter entirely unrelated to the Y correspondence for which he was punished.

On the suggestion of the Employer and with the agreement of the Worker Stage 3 was bypassed by the parties as it would have been a repeat procedure of Stage 2. The matter was then referred to the WRC by the Worker

The Employer stated that there was a disagreement between the parties in regard to whether or not an appeal with the issuing of a Notice under the Employer’s Disciplinary Regulations was amenable to being dealt with under their Dispute Resolution Procedures. Following consultation, it was agreed that the ‘process’ would be examined under the grievance procedure. 

The Worker had the benefit of Stage 1 and Stage 2 investigations into his complaint. He received the outcome of Stage 1 dated the 22/1/2024 which did not uphold his complaint. He then appealed the outcome to Stage 2 of the procedure. An investigation was carried out by an Assistant Commissioner and the outcome was again not in the Worker’s favour. This was issued on the 25/03/2024.

Both outcomes found that there was no right to representation when receiving a Regulation 10 Notice under the Disciplinary Regulations. In addition, the outcome found that there is no right to appeal under the Regulations where a Regulation 10 Notice is issued.

The Employer also highlighted that this dispute centres on the issuing of a Regulation 10 Notice under the Employer’s statutory code. Regulation 10 is the ‘Informal’ disciplinary procedure for minor breaches of discipline in the police service. It states as follows: ‘ Notwithstanding anything in these regulations, a member whose duties include supervision of another member may deal informally with a minor breach of discipline by that other member, whether by advice, caution or warning, as the circumstances may require.’ The Regulations also state that the meaning of ‘Informal process’ means any process for the informal resolution of minor breaches of discipline under Regulation 10. It was asserted that this makes it clear that any notice issued pursuant to Regulation 10 is an informal process and as such does not require the adherence to fair procedures that would normally be employed in investigations of more serious disciplinary breaches.

The Respondent’s representative stated that this approach contrasts with Regulation 14, Part 2 of the Disciplinary Regulations, which is used for ‘Less Serious Breaches of Discipline’. Specifically, under Regulation 14, an investigating officer must be appointed to investigate the alleged breach, the officer appointed must be impartial, the appointing officer will not be below the rank of Chief Superintendent, the member under investigation will be provided with the alleged breach in advance of the investigation meeting and will have the right to consult or be represented by their Association Representative. Regulation 10 does not set out a list of procedures to be followed unlike Regulation 14 or 22 because Regulation 10 is the informal process and as such does not require the formalities as set out in Regulation 14 and further in Regulation 22 for serious breaches of discipline.

The Worker had a preliminary meeting with the Superintendent at which the matters of concern were made clear and he had an opportunity to object and to put his side at this meeting. Some hours later the Superintendent issued the Regulation 10 Notice. In so doing, the Superintendent followed the Disciplinary Regulations in regard to issuing a Regulation 10 ‘informal’ Notice. Nothing more was required under the Regulations as this is an informal stage Notice.

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

I note firstly that the Worker in his submissions highlighted that:

·       he had not been placed on notice of the allegations;

·       the allegations had not been adequately particularised to him;  

·       he had not been given an opportunity to reply or make representations;

·       there was no investigation into the allegations made against him;

·       he had not been afforded either the right to representation or the right to appeal the Regulation 10 notice,

I cannot make a recommendation in respect of these aspects of his complaint however because to do so would have broader repercussions beyond this dispute in respect of all Regulation 10 notifications.

The Worker also stated that the particulars of his purported misconduct/insubordination had not been adequately explained when the Regulation 10 notice was issued to him and highlighted that this was unfair.

In deciding whether I can make a recommendation in respect of this aspect of his complaint, I note firstly that the issuing of a Regulation 10 notice constitutes disciplinary action given that the Regulations stipulate that: “disciplinary action” means a disciplinary action specified in Regulation 10, 14(3) or 22” and “disciplinary proceedings means any informal process, interview, investigation, inquiry.

Regulation 10 itself further states that “Notwithstanding anything in these regulations, a member whose duties include the supervision of another member may deal informally with a minor breach of discipline by that other member, whether by advice, caution or warning, as the circumstances may require.”

Considering the foregoing, I am satisfied that disciplinary proceedings were instigated against the Worker further to which disciplinary action, namely the issuing of a Regulation 10 notice, was taken against him. I am therefore of the view I can make a recommendation in respect of this aspect of his complaint, namely around the fairness of the disciplinary action.

In the first instance, I must decide if proof of a breach of discipline was established by the Employer. Specifically, Regulation 9 states as follows:  In any disciplinary proceedings proof of a breach of discipline is to be established on the balance of probabilities. Having regard to this, I noted firstly that the Worker stated he was not given a reasonable explanation for the issuing of the Regulation 10 notice either verbally or in writing. I also noted that there were no minutes of any meeting presented to him in advance of the issuing of the notice. Moreover, the Employer failed to explain at any stage how the communication, namely the email of 8 May, behind the disciplinary action constituted insubordination or misconduct. Having also examined the Regulation 10 notice itself, I noted that it stated the Worker displayed “misconduct towards a member name of Superintendent” and “This misconduct being insubordination by way of communication on file XXX on the 08/05/2023”. Crucially, it failed to explain either how the Worker’s communication had been insubordinate or how it constituted misconduct.

In the absence of any cogent reasons to explain why or how the communication in relation to file XXX on 8 May 2023constituted insubordination, I cannot establish, on the balance of probabilities, that there was sufficient proof of a breach of discipline.