Worker

Employer

Anonymised Parties

A Worker

A Company

Representatives

Setanta Landers

Michael Devitt, BL

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 - 00002684

23/05/2024

The worker has considerable service with the company. In June 2023, another employee reported a personal property item as missing. This resulted in an immediate investigation which established that the worker had removed the property from a desk. As the worker was on extended leave up to August 2023, he was interviewed on his return. He admitted to removing the item although his position was that he had borrowed it and intended to return it. The worker was suspended with pay pending further investigation and conclusion of the disciplinary process.

In November 2023, a senior manager decided that the appropriate disciplinary sanction was a final written warning (24 months) along with a permanent demotion.

This disciplinary sanction was appealed by the worker. In May 2024, a more senior manager decided to uphold the original decision.

As per the company procedures, the disciplinary matter was appealed to the WRC on 23rd May 2024.

Both parties agreed to attend the WRC and allow the Adjudication Officer to investigate the trade dispute and make a recommendation on the merits of the dispute.   

The worker’s representative summarised their case at the hearing. He raised procedural deficits which occurred at the commencement of the investigation and without the worker’s knowledge that an investigation had commenced.

He questioned whether the investigation officer had the appropriate authority to suspend the worker. He submitted that the investigation had commenced prior to receipt of a formal complaint. He questioned the use of CCTV footage prior to a meeting with the worker. He submitted that an internal confidential investigation document of 7th September 2023 was copied unnecessarily to other managers, and this prejudiced the process, particularly as one of the managers later heard the appeal.

He also questioned the proportionality of the sanction. No company property went missing and the property was returned to the worker concerned who did not want the matter pursued.

He concluded that the worker had a good record with the company and was anxious to have all matters resolved so he could return to work.

The employer’s representative outlined that the agreed procedures had been followed and the worker was afforded due process throughout the process. The worker was suspended with pay to allow for the investigation and follow up disciplinary process. All meetings were documented and forwarded to the worker’s representative and all matters had been responded to by the company. The worker was allowed to be represented and accompanied to all meetings. He was also afforded an internal appeal. The company had an onus to investigate the missing property of their employee and consider an appropriate sanction. The company viewed the matter as very serious.

In conducting my investigation, I have considered all relevant submissions presented by the parties. The worker, his representative, and all relevant staff of the company attended the hearing and set out their positions in a professional manner.

This dispute has been ongoing for some time. This issue arose for the company in June 2023 when an item was reported missing and for the worker after returning from leave in August 2023.  As the worker had a good record and significant service with the company, there is no doubt that this matter has caused him considerable stress. It was also evident that management sought to deal with the issue in a professional manner and in accordance with procedures. Although trust between the parties may have been damaged, I am confident from the conduct of the parties at the hearing that any damage to relationships can be repaired over time.

As the parties have outlined their respective positions and answered questions openly and honestly, I am well informed of the details of this individual dispute. Given the size of the company, this is one of many disciplinary issues that can arise. Although each case will differ on their facts, there is an onus on management to use their judgement and decide on these matters in a consistent and fair manner. I am conscious not to interfere with the employers right to manage. Therefore, I will not interfere unnecessarily unless there are valid and legitimate reasons to do so.

I have reviewed the detailed disciplinary procedures. There is no requirement to recommend any changes as it is clear that these have been reviewed regularly with unions and form the framework under which disciplinary issues are dealt with.

Fair Procedures

I note the representations that the senior manager who heard the appeal was also copied on the earlier investigation report. It is common case that if involved earlier in the process, a manager should never be part of an appeal process. However, in this case, having reviewed the documents, I am satisfied that the manager was not actively involved earlier in the process. The investigation report copied to the manager related to factual matters not in dispute. The worker admitted taking the item from the desk. I am satisfied the worker was not prejudiced as the issues at play during the appeal were mitigation issues on the circumstances before and after the item was removed. I am satisfied that there was no prejudice to the worker during the appeal and the senior manager was not conflicted in hearing the appeal.

I am also satisfied that as a personal item went missing, and a complaint was made by another employee, the employer was under an obligation to investigate. As CCTV was available, I do not see it as inappropriate that this would be used.

In conclusion, for the reasons outlined, the worker was afforded fair procedures and due process as outlined in Michael Morales v. Carton Bros UD 835/2011.

There are two consequential issues to be considered. One is the extended time to conclude the disciplinary process. The other is the internal investigation report of 7th September 2023 circulated to some senior managers.

Timeline

The company submitted that the extended period of paid suspension was to allow for the completion of the investigation and subsequent disciplinary process. I note from the procedures that this type of suspension was to be reviewed periodically. Although ‘a manager’ can instigate the paid suspension, it is the senior HR Manager that is required to keep matters under review. This measure ensures an early return to work, when appropriate. I take it from the type of sanction under consideration that the focus of both parties was on the sanction itself and not necessarily on conducting regular reviews on the possibility of a return to work.

The time taken to consider the appeal was an extended process. It was submitted that this was required to consider all matters before making a decision. Although the extended period was to facilitate both sides, the agreed disciplinary procedures at 4.1 state the procedure should not extend beyond four months. Indeed, in management’s submission they have included 4.1 of the procedure. There was an acceptance by management at the hearing that the process did extend over a lengthy period. It was submitted that any extended periods were for the right reasons and also facilitated the worker. This extended period must have further exacerbated the issue and caused stress to the worker. At 15.4 of the procedure, it states the appeal should be decided as soon as practicable.

Internal Document

The internal document of 7th September 2023 circulated to managers may have endangered the confidentiality of the process, particularly as 2.1 of the procedure stresses the need for privacy.

A number of senior managers were copied on the investigation report. I have a concern of the potential bias that this could have on the worker into the future. Having satisfactorily served the final warning period, if the worker does not get back to his current grade, the permanent demotion could last over his full career.

I also note the procedures state under the heading ‘Final Written Warning’ at 13.4 that a final warning may be accompanied with another sanction and specifically refers to a reduction of a maximum of three increments. This indicates that a worker can regain his salary level over time. Although a demotion forms part of the procedure, the sanction issued to the worker in this case specifically refers to a ‘permanent’ demotion. As a permanent demotion is not emphasised in the procedure, there is the possibility that even over time, with future good service that the worker may not be able to remedy matters. This does not sit well for a remedial disciplinary process as per 5.0 of the policy.

Due to the circumstances of this case (timeline, internal document), there needs to be sufficient certainty once the final warning period has expired.

Recommendations

In assessing the merits of the dispute, I am satisfied that fair procedures and due process was afforded to the worker. The worker though is entitled to some credit for the extended process and circulation of the internal document.

The fact that matters became protracted had a detrimental effect on the worker. Although, he has retained his pay level pending this process, the lengthy suspension comes with negative connotations. As he admitted removing the item from the desk in August 2023, as per the procedures, the investigation and disciplinary process should have been completed by December 2023 (within 4 months).

A sanction of final written warning and permanent demotion has been decided by management and I recommend a variation, as follows, due to the reasons outlined.

I recommend that the worker accept the disciplinary sanctions imposed, that he is demoted from the date of this recommendation. The final written warning and demotion will expire on 15th December 2025 (subject to satisfactory service) and the worker will return to his former grade on this date (same point on scale with normal pay increases applied). The worker to notify management when certified fit to return to work so a meeting can be arranged to discuss an appropriate assignment.

Disciplinary sanction