ADJUDICATION OFFICER DECISION and RECOMMENDATION
Adjudication Reference: ADJ-00008885
A Childcare Worker
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 15/01/2018
Workplace Relations Commission Adjudication Officer: Peter O'Brien
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Complainant was contesting a procedure which resulted in a gross misconduct charge and that she had not received her written terms and conditions of employment within two months of commencing employment.
Summary of Complainant’s Case:
The Complainant made a verbal submission and was appealing the issue of a verbal warning and that the Respondent had breached the Terms of Employment Information Act 1994 by not providing her a written statement of terms and conditions within two months of commencing employment.
The Complainant denied any allegations of wrongdoing and sought specifics of what procedures she had infringed to justify giving her a written warning.
The Complainant commenced work in November 2013 as a Childcare worker.
On Friday January 27th 2017 at 5.20pm she was told to attend a meeting with the co-Chairperson of the Board. She had received no notice and was unaware of the purpose.
She was informed of an incident in the Baby Room on January 4th 2017 and that she was been given a written warning. She was subsequently told she would not be covering the Baby room until further notice. The Complainant denied any wrongdoing in the Baby Room and asked what procedure had she broken. This was not clarified.
She was advised there would be given a further disciplinary meeting and given a copy of the disciplinary procedure (after a while).
She was given a large volume of disorganised pages to do with the Respondents disciplinary process and asked was she aware she had a contract. She advised yes but had not received a copy.
On February 7th 2017 at 5.20pm she was told to attend a disciplinary meet the next day at 1pm, alleging gross misconduct regarding her alleged actions on January 17th in the Baby Room. The Complainant was shocked by these further allegations and felt these was a campaign against her. Due to stress the Complainant could not attend the Hearing on February 8th It was rescheduled to February 14th. The Complainants Solicitor contacted the Respondent about their behaviour and informed them that the Complainant could not attend the Hearing due to due to medically certified stress. A further meeting was then scheduled for February 20th by the Respondent.
Eventually February 23rd was agreed for the investigation meeting. The complainant was represented by her Solicitor at the meeting. The Representatives role was diminished and controlled at the meeting and she was not allowed sit with the Complaint, ask questions and was told to keep quite. The Investigator took private phone calls during the meeting.
Certain information purporting to be from CCTV was put to the Complainant and the investigation report took six weeks to conclude. The Respondent contested on several occasions the Complainants right to be legally represented even though their own policies allowed for it.
The Complainant was told that the initial complaints/information were of a verbal nature and they should have been written statements contrary to good practice.
The findings were that the Complainant did not act appropriately in the Baby Room regard care by not comforting a baby and some other issues. The Complainant was not told what she should have done differently in the circumstances.
The report concluded that no other staff members were affected by her actions and the report stated that further action was warranted.
A HR Consultant was then appointed to conduct the disciplinary process.
No formal allegations were put to the Complainant and she was denied minutes of prior meetings.
Despite numerous correspondence seeking information the Disciplinary meeting went ahead in the Complainants absence and the Complainants Solicitor was notified the Hearing was cancelled yes the Complainant subsequently received the outcome of that Hearing held in her absence and a written warning was being put on her file.
The Complainant stated she did not get a copy of her employment contract until 2015, two years after commencing employment.
Summary of Respondent’s Case:
The Respondent was established in September 2007 and operates a crèche facility for the benefit of the local community.
The Complainant commenced her employment with the Employer on the 05th November 2015 and her position is that of childcare worker. The Complainant signed a Contract of Employment at that time. In addition, an Employee Handbook, which is supplemental to the Contract of Employment, is made available to all employees. The section of the Employee Handbook which sets out the Disciplinary Policy and Procedure of the Respondent is in the Handbook. All employees of the Respondent are required to review and sign off on all changes to the Employee Handbook.
The Chairperson of the Board of Directors of the Respondent, became aware of an incident involving the Complainant on the 17th January 2017 as a result of a verbal report from the Complainants Manager to a board director on the 18th January 2017. The board director informed the Chairperson, who in turn spoke with the Manager. The Chairperson and Board Vice-Chairperson reviewed the Complainant’s employee file having reviewed the incident on the 17th January 2017. They had been made aware that the Complainant was very agitated when she spoke to the Manager on that occasion. The Manager’s Report, contained in the employee file, made reference to a meeting with the Complainant on the 04th January 2017. The Chairperson and Vice-Chairperson were interested in reviewing the interaction between the Manager and the Complainant on that occasion as a comparison. They also wished to observe the Complainant’s attention to her own group of children, as she had been advised of the importance of this issue by the Manager on the 17th January 2017. While scrolling through the CCTV for the meeting on the 04th January 2017, they came across the incident in question, which occurred very shortly before the meeting.
Arising from these enquiries the Respondent was satisfied that the incidents in question warranted further investigation, in accordance with its Disciplinary Policy and Procedure. Accordingly, by letter dated the 07th February 2017, the Respondent put the Complainant on notice of the allegations which required to be considered and the process for doing so. A copy of this letter, which specifies the precise allegations against the Complainant was provided to the Complainant.
As part of this investigation, the Respondent met with and took statements from all witnesses of relevance to the investigation. The Respondent endeavoured to meet with the Complainant on a number of occasions to allow her to put forward her version of events as part of this process. The Complainant was unable to attend proposed meetings on the 08th February 2017 and the 14th February 2017 before attending a meeting on the 23rd February 2017. The assertions of the Complainant in her Complaint Form that “there was a real power narrative at play” during this meeting is not understood. The Complainant was given every opportunity to address the meeting in relation to the specified allegations. Contrary to the Complainant’s statement that “she was anxious to clear her good name and to engage in the process”, the Complainant refused to answer the question of the Investigator in relation to the incidents on the 04th January 2017 on the advice of her legal advisor. The Complainant’s solicitor, had indicated in advance of that meeting that she intended to accompany the Complainant in her capacity as a friend of the Complainant, which would have constituted a conflict of interest. A letter from the Respondents solicitor to the Complainants solicitor dated the 23rd February 2017 clarified that this proposal was unhelpful at that stage of the investigation, but that the Complainant was entitled to bring a colleague with her to the meeting.
Following the conclusion of this investigation, and having considered the available evidence, in compliance with the terms of the Respondent’s Disciplinary Policy and Procedure, the Report arising therefrom recommended that the allegations against the Complainant warranted further action.
The Board of Directors thereafter instructed an independent investigator, to conduct a formal investigation, again in accordance with its Disciplinary Policy and Procedure. This process was initiated by the Independent Investigator on foot of letter dated the 31st March 2017.. This letter sets out clearly and unequivocally the allegations against the Complainant and the format of the Investigation, including an invitation to the Complainant to attend a disciplinary meeting on the 12th April 2017. As part of this process, the Complainant was furnished with copies of all documents of relevance, as specified in the letter from the Investigator to the Complainant dated the 05th April 2017.
The Complainant did not attend the scheduled meeting on the 12th April 2017, relying upon a Doctor’s Certificate stating that she was suffering from stress. The Complainant was unable to attend the proposed adjourned meeting on the 21st April 2017, due to her being in Dublin that day. The Complainant made no reference to suffering from stress at that point. The Complainant then made herself available for the proposed meeting on the 24th April 2017 but subject to her solicitor being present. In circumstances where the Complainant has long since been made aware by the Respondent and the Independent Investigator of the procedures for conducting this meeting, this stipulation, referred to in the letter from the Complaints solicitor dated the 24th April 2017 as being “non negotiable”, rendered it impossible for the Independent Investigator to meet with the Complainant.
The Independent Investigator then concluded her investigation based on the documentation and evidence then to hand, with the outcome of the investigation being communicated to the Complainant by letter dated the 26th May 2017.
The Complainant has chosen not to avail of the internal appeal procedure specified in the Disciplinary Policy & Procedure section of the Employee handbook.
We submit that the procedures adopted by, firstly, the Respondent and, secondly, the Independent Investigator in investigating the allegations against the Complainant are fully compliant with the requirements of its Disciplinary Policy and Procedure and in accordance with the principles of natural justice and fair procedures.
The assertion in the Complainant’s Complaint form that she wished to engage in the investigation process is disputed. We submit that the Complainant has done everything in her power to frustrate the progression and completion of this investigation process. The Complainant was given numerous opportunities to meet with both representatives of the Respondent and the Independent Investigator, but chose not to make herself available for various reasons. For example, the Complainant was unavailable for the proposed meeting with the Independent Investigator on the 12th April 2017 due to her suffering from stress.
The Complainant through her solicitor has repeatedly raised the issue of the CCTV footage relating to the 04th January 2017 and the 17th January 2017 and has sought to rely upon this issue to prevent the investigation from being progressed. We submit in this regard that the CCTV in question was reviewed in compliance with their policy and procedure for operating CCTV. In addition, the initial findings of the Respondent and subsequent findings of the Independent Investigator were based on the entirety of the evidence and documentation then to hand. The Complainant has submitted a complaint to the Data Protection Commissioner, which is ongoing at present and which the Respondent is fully engaging in. That compliant is separate to and distinct from the within complaint.
The involvement of the Complainant’s solicitor in this process from the outset is most unusual in a case such as this, and ultimately unhelpful.
Taking the above into account, it is quite clear that the Respondent has investigated the allegations against the Complainant in a thorough and transparent manner and in accordance with its Disciplinary Policy and Procedure, details of which the Complainant has at all times been aware of. The sanctions imposed by the Independent Investigator are proportionate having regard to the available evidence and documentation. We respectfully believe that this complaint by the Complainant has no merit or justification and must fail.
Recommendation and Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. Recommendation with regard to claim reference number CA 00011798-001
The Complainant stating her warning was unjustified from a substantive and procedural perspective. The Complainant was facing an allegation of gross misconduct. A person facing this kind of allegation is entitled to professional representation, even if not in the written procedures, due to the severity of the claim and the potential outcome.
Two issues were raised in the Hearing. The substantive issue and the procedural issue. It is not my intention to deal in any way with the substantive issue due to the limited evidence. Therefore this recommendation is primarily focused on the procedural issues surrounding the issue of the warning.
The Investigation and disciplinary process in this case had some or many flaws. The Complainant was not given fair procedures, multiple people were involved in the process, meetings cancelled and then outcomes from a meeting given to the Complainant who would have attended the meeting if it was not cancelled etc. etc. Disciplinary meetings were set up with no adequate notice, right to representation limited, no clear documents investigation or disciplinary process, no written allegations or provision of information regarding allegations in advance of meetings, taking of evidence was limited and inappropriate people being involved in the process and the issuing of a disciplinary action by a third party was inappropriate. For example the Respondents own procedures states that a warning may be issued by a “Manager/Staff Liaison Person”. The Complainant was never notified of who the “Staff Liaison” person was and the warning was not issued again in line with their own procedures “ The warning will be issued by the Manger/Staff Liaison person to the employee in the presence of the Manager and representative from the Management Committee and the Employees Representative” . This did not happen and the warning was issued by the Independent Investigator, which could have been a conflict of interest, not withstanding the professionalism of the Investigator. It is critical when admonishing an employee for not following “procedures” that a Respondent follows its own procedures in issuing a warning.
I am not commenting on the substantive allegations, as I am not privy to all that detail, but on the inadequacies on the process alone I recommend that the warning be squashed from the Complainants file immediately and all traces of this process be taken from the Complainants personnel file.
I also recommend that the Complainant be compensated 2,000 Euros for the stress and strain caused by the process and her reputational damage as a result of the flawed process.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. Decision with regard to claim reference number CA 00011798-002.
There was conflicting evidence as to the Complainants start date and therefore I am not in a position to make a definitive and clear determination on this matter so the claim fails accordingly.
Dated: 27th April 2018
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Appeal of Warning