LCR22232

1. Disciplinary measures deployed within the workplace .

BACKGROUND:

2. This dispute concerns disciplinary measures deployed within the workplace The Worker referred this case to the Labour Court on 9 December 2019 in accordance with Section 20 (1) of the Industrial Relations Act, 1969, and agreed to be bound by the Court’s Recommendation. A Labour Court hearing took place on 3 July 2020.




WORKER’S ARGUMENTS:

3. 1. The Worker states that the Employer did not comply with their own procedure in the disciplinary process and that she was not afforded an opportunity to comply.

2. The Worker believes that it was wrong of the Employer to engage in a second disciplinary procedure.


EMPLOYER'S ARGUMENTS:

4. 1. There is no element of the HSE procedure that has not been complied with.

2. The disciplinary process was dealt with in a fair manner.

RECOMMENDATION :

The issues properly before the Court arose from a disciplinary process . While the Worker had identified a number of other issues the Employer’s grievance procedure in respect of these issues had not been exhausted and therefore it was not appropriate for the Court to consider the issues. At the commencement of the hearing the Court set out for the benefit of both parties the role of the Court in terms of hearing complaints under the Industrial relations Acts and drew the party’s attention to the Court rules in respect of same in particular rules 55, 56 and 58.

The initial disciplinary process stemmed from concerns raised by the Worker’s line manager after efforts by her to resolve the issues locally were unsuccessful. The Worker was invited to and attended a disciplinary meeting. The outcome of same was that a number of direct instructions were given to the Worker and a sanction of a verbal warning lasting six months was given.

Two months later the Line Manager had concerns that the instructions issued were not being complied with and escalated her concerns. This led to a stage two disciplinary hearing. The outcome of the stage two hearing was that a finding was made in respect of three of the four issues that the line manager had raised, and a written warning was issued in respect of those three issues. As no finding was made in respect of one of the issues once the verbal warning attached to that issue expired that issue was no longer a live issue. The written warning in respect of the three issues was for nine months and expired in March 2020. It was the Worker’s submission that the procedure followed was flawed in that there was no pre-liminary investigation and that she believed that her line manager ‘jumped the gun’ in terms of escalating the issues to stage two. The Worker also felt that because the oral warning was for six months that meant she had six months to carry out the directions that arose from the stage one hearing. The Court having heard both parties is satisfied that the process as set out above was a fair process and was carried out in line with the Employer’s disciplinary procedure. As the written warning for the three issues expired in March 2020 these issues are no longer live issues and in accordance with the Employer’s procedure the warning should be removed from the Worker’s file.

The second disciplinary procedure arose from concerns the Decision maker in the first process had in respect of the original stage one and stage two hearings. In particular the Worker’s failure to comply with directions that he had issued. The Court note’s the Employer’s submission that from the time it was initially flagged that these concerns may become a formal complaint under the disciplinary procedure the Employer afforded the Worker on at least two occasions an opportunity to rectify the shortcomings before deciding to formally proceed to a disciplinary process. The Court notes that the Decision maker in making his formal complaint to his manager in respect of the Worker sets out the stage of the disciplinary procedure he believed was appropriate for addressing his complaints. The Decision maker identified stage three as the appropriate stage. The Worker was then invited by letter to a stage three hearing in respect of the complaint’s raised by the Decision maker from the previous process. No explanation is contained in the letter as to why it is a stage three procedure.

The Worker identified some concerns she had in relation to this process. The Court having heard both parties has concerns that the person making the complaint was able to input into the appropriate stage that their complaint was to be dealt with but the person against whom the complaint was made was not afforded a similar opportunity to comment on what stage of the procedure the complaint should be dealt with. While the Court notes the Employer’s submission that the Disciplinary procedure is silent on this issue, the Court has some concern as to how a procedure that affords one person the opportunity to input and does not afford the same opportunity to the person the subject of the complaint, could meet the requirement for fair procedure. The Court also notes that the letter inviting the Worker to the stage three procedure does not set out the consequences such as dismissal for failing to make the required improvements following a stage three hearing.

The Court is of the view that the current procedure in respect of this complaint is flawed and should not be continued. However, in the interest of clarity the Court wishes to state that nothing in this recommendation prevents the Employer from processing the complaint it received in accordance with their own disciplinary procedures should they decide to do so.

An underlying issue between the parties was the issue of two covert recordings made by the Worker. The Worker confirmed in writing in her submission that she had accidently deleted one of the recordings. The Worker confirmed at the hearing of the case that she still had one recording. The Worker also confirmed that she had not made any other recordings in the workplace. On foot of a request from the Court the Worker undertook to destroy the recording that she held and to notify the Court in writing that she had done so. By email dated 7^th July 2020 the Worker notified the Court that the remaining audio recording had been deleted and that no copies existed. She also confirmed that there had only ever been two recordings both of which had now been deleted.

The Court as set out above recommends that in relation to the first Disciplinary hearing that the warning if it has not already been removed , be removed from the Worker’s file. In relation to the second disciplinary hearing the Court is of the view that the process to date is flawed and should not be continued.

The Court so recommends.

	Signed on behalf of the Labour Court
	Louise O'Donnell
MK	______________________
16 July 2020	Deputy Chairman