Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Tiernan Lowey BL instructed by Aine Curran O'Mara Geraghty McCourt

MP Guinness BL instructed by Lewis Silkin Ireland

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 - 00002554

28/04/2024

The Worker occupies a senior role in the Employer’s Irish subsidiary. The Employer is a multinational and the Worker works in a department involved in procurement.

Revenue raised concerns about purchases made by the Employer through a contractor (“Company A”) and this prompted the Employer to begin an internal investigation in August 2023. Following that investigation a disciplinary hearing was held in January 2024 and a sanction of final written warning was applied to the Worker.

The Worker has referred a complaint under the industrial relations act in relation to that disciplinary sanction.

Issued with a final written warning where the principals and process of both natural justice and Statutory Instrument 146 were not applied to this matter. The sanction is disproportionate. The company disregarded how expenses were authorized and any mitigating factors raised during the disciplinary process such as the expenses were sanctioned by senior management and was custom and practice in the organization were not taken into account. As a result I have incurred reputation damage by the manner how the disciplinary process was conducted during and subsequent to the sanction. In addition the company failed to provide me with access to personal information as requested prior to the disciplinary hearing date.

The sanction subsequently impacted on a bonus the Worker received so though the sanction is now expired the Worker is at a loss due to it having existed and as such there is merit in considering the trade dispute related it.  

The Complainant was invited to an investigation meeting on the 30th of August. He thought it was a compliance investigation related to the use of Company A and record keeping. He was never told that a disciplinary sanction or reduction in his bonus could be an outcome of the investigation. He thought it was serious matter but he understood that he was being asked to attend as a witness and was not a potential subject.

He was asked about Company A. They are a facilities management company and he never had direct dealings with them. Company A have a long standing relationship with the Employer and support them where there were issues with other suppliers. Due to the Respondent’s use of a certain credit card which was not always accepted in Europe, Company A could process other purchases for them. He would always act with approval from his line manager and business expenses all needed to be approved. They had issued vouchers to employees via Company A on a number of occasions. This would be when someone got married or the birth of a child. There were also some vouchers in lieu of cancelled staff events.

The Complainant returned from paternity leave in October and discovered that his line manager was gone from internal systems. He had a panic attack and was out until early January 2024. He was written to on the 25 of January and invited to a disciplinary hearing. He was put on notice that a sanction up to and including dismissal might result from this process. He was not allowed any input into the process to decide to refer the matter into a disciplinary hearing. He had generally been challenging the process as flawed but the Respondent pushed ahead with it.

On the 8th of February he received notice that he was being issued with a final written warning. While he never made any gain from the Company A purchases he initiated he did receive a €200 voucher from his team for the birth of his child which turned out to have been procured via Company A. He had no role in initiating the gift but it was pointed to as a reason for the final written warning. He thought this was an unfair conclusion and it was a particular focus of the outcome which concluded that he had gained personally from what had happened. Aside from that he had received a voucher for a cancelled staff event which came to the value of about €30.

He appealed the outcome but was unsuccessful.

The Respondent’s counsel made written and oral submission on their behalf. They discovered that a department was circumventing policies via Company A after revenue raised queries.

This investigation revealed that the Worker was knowingly involved in circumventing policy. In the circumstances it was reasonable to refer him to a disciplinary hearing. He was a senior manager and they were entitled to expect a high standard from him.

This was a serious matter and the disciplinary officer concluded that a final written warning was appropriate. While the Complainant did take some accountability for his actions this was limited.

At all stages the Worker’s rights to fair procedure were upheld.

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

Referring back to the Worker’s complaint under the act he first raises an issue of procedural fairness stating, “(I was) Issued with a final written warning where the principals and process of both natural justice and Statutory Instrument 146 were not applied to this matter.

Section 6 of SI 146 of 2000 provides that

The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

•    That employee grievances are fairly examined and processed;

•    That details of any allegations or complaints are put to the employee concerned;

•    That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

•   That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

•   That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

On review of the submissions it would appear that the Employer has followed the steps outlined above. While the letter inviting the Worker to the initial investigation meeting did not explicitly refer to the potential for a disciplinary outcome it was clear that it concerned potential breaches of Employer policy which the Worker was involved with and he was given an opportunity to bring a representative to that meeting. The letter accompanied a number of communications which the Worker was party to. The disciplinary hearing invitation was abundantly clear on what it was and the Worker had sight of all the findings that the disciplinary officer had in front of them. He was entitled to reply to these further before any decision was made. He was allowed appeal the sanction once it had issued.

The complaint goes on to challenge the outcome as unreasonable.

The sanction is disproportionate. The company disregarded how expenses were authorized and any mitigating factors raised during the disciplinary process such as the expenses were sanctioned by senior management and was custom and practice in the organization were not taken into account. As a result I have incurred reputation damage by the manner how the disciplinary process was conducted during and subsequent to the sanction..

I would accept the Worker’s position that the outcome was severe. He was sanctioned for organising staff gifts in the same way his department had for a number of years and his line manager knew and agreed with his actions. The Employer’s position is that they have strict central controls on staff gifts and that the Worker was a senior manager who had been trained on these policies and was expected to uphold them regardless of what his line manager was doing. They dismissed his line manager and sanctioned a number of other staff a well.

Ultimately this was a matter for the Employer to determine. They are entitled to take a severe approach to compliance and discipline particularly when reviewing the actions of senior management. There is no basis to conclude they were targeting the Worker unfairly in that he was one of several people sanctioned and they did identify clear reasons for the sanction.

In the circumstances I do not think it would be appropriate for me to recommend that the sanction was unfair or unreasonable.