ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00011196
A general operative
A local authority
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 17/01/2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant commenced employment with a local authority on 18/06/2007, he was employed as a general operative.
On 6th July 2015, during an altercation with his foreman, the Complainant was verbally abusive to the foreman. The foreman formally complained to management and the Complainant was suspended on full pay pending the outcome of an investigation.
Following the investigation the Complainant was issued with a final written warning for a period of one year and transferred to another department within the local authority.
Summary of Complainant’s Case:
1. In 2014 two of the Complainant’s colleagues made a formal complaint of bullying & harassment against their supervisor. In response the supervisor made serious allegations against both complainants along with the complainant in this case who had not been a party to the original complaint against the supervisor.
2. Local authority management did not initiate any formal process action against the Complainant on foot of the supervisor’s allegations.
3. The Complainant sought details of the supervisor’s statements but was refused. On 1st March 2015, he invoked his rights under data protection legislation. He eventually received a heavily redacted copy of the minutes of the supervisor’s investigation meeting.
4. On 6th July 2015, aware of the serious nature of the supervisor’s allegations and through complete frustration with the behaviour of his supervisor and HR management the Complainant engaged in a verbal altercation with the supervisor following which the supervisor made a formal complaint.
5. A disciplinary hearing was held on 08th July 2015. The Complainant received a final written warning and was transferred from that department with immediate effect.
6. The Complainant, with assistance from his trade union, has been seeking a return to his former department for a considerable period. A number of meetings took place locally without success.
1. The Complainant was not subjected to any formal process in relation to an extremely serious allegation there was no attempt to ascertain if the foreman’s allegations were malicious or vexatious.
2. The union believe that the behaviour of management towards the Complainant was largely responsible for the incident on 6th July 2015.
3. It is unreasonable and unfair to have imposed a permanent sanction the financial consequences of the Complainant and his family continue to suffer.
4. There is now no impediment to returning the Complainant to his former position as those others who were directly responsible for the incident in July 2015 have now retired.
Summary of Respondent’s Case:
The Respondent’s submission outlines the background to the case and this was very much in line with the version submitted by representative of the Complainant.
The decision letter, dated 21st July 2015 from senior executive officer outlined the sanctions being taken against the Complainant and these read as follows:
“I refer to your attendance at the above disciplinary hearing, at which you were accompanied by your Union representative following your suspension on full pay.
The hearing was in relation to an allegation against you of a very serious incident of verbal abuse which you accepted had happened and you explained that it was a result of ongoing work related stress. Following on from this admission, I recommended that you attend CHI, the occupational health service provider. I am aware that you have attended CHI and that you admitted to the doctor that incident had happened as described by yourself and witnesses.
I have concluded that your actions could be construed as gross misconduct and that I might be justified in recommending your dismissal. However, following careful consideration of your case I have decided on the following sanctions:
· This letter is to be considered a final written warning which will remain on your record for one year.
· You will be transferred from the xxxxxx service with immediate effect.
You will be contacted in this regard in the near future.
You may appeal this decision to the Human Resources Department within 10 working days. If you do not wish to appeal, please inform this office immediately so the matter of your transfer can be progressed.
However, if you decide to appeal, please be aware that the above sanctions may be upheld, modified or reduced”.
By email dated 28TH July 2015 the Complainant responded:
“I will not be appealing the senior executive officer’s decision made on 21st July 2015”
On 20/10/2015 a senior executive officer from the Human Resources Department emailed the Complainant a response to queries raised by the Complainant in a number of emails, the points stressed in the email from the senior executive officer were as follows:
1. You were issued with a Final Written Warning on 21st July 2015 which will remain in place for one year.
2. You have been transferred as part of the Final Written Warning.
3. I will not be re-examining the issue of the Final Written Warning to you.
On 11/08/2017 the Complainant with his union representative met with a member of the Human Resources Department – at this meeting the Complainant asked to be transferred back to his original department.
On 08/09/2017 a member of the Human Resources Management team met with the Complainant and his union representative and informed the Complainant that his request back to his former department would not be re-examined as this issue was previously addressed by way of email dated 20/10/2015 from the Senior Executive Officer, Human Resources. At this meeting the Complainant was asked would he consider a transfer to another department but not his original department. The Complainant advised that he wanted a return to his previous role in his previous department.
In conclusion the Respondent issued disciplinary sanctions to the Complainant following the investigation of a very serious workplace incident. These sanctions were issued in line with the agreed disciplinary procedure. The Complainant did not appeal the sanctions issued at the time.
Findings and Conclusions:
The process followed by the Respondent was very much in line with its policies and procedures and, I believe in line with best practice.
At the time of the disciplinary sanctions there was no appeal (Complainant’s email dated 28th July 2015)
The penalties, which may be imposed on staff members in the course of disciplinary action, could include;
a. Verbal warning
b. Written warning
c. Final warning
d. Deduction from pay in respect of lost working time
e. Exclusion from overtime work for a prescribed period
f. Withholding of an increment
g. Removal from flexi – time scheme
h. Removal from sick pay scheme
i. Grant of leave with or without pay for a prescribed period
k. Demotion either temporarily or permanently
The Complainant feels that the sanction of removing /transferring him from his own department to another department is a permanent sanction and more so when the reduction in annual earnings is considered.
Some of the sanctions listed above could be described as more permanent than others and these are part of a collective agreement.
I believe the Respondent in this case has been fair and has acted in accordance with agreed procedures and for this reason the complaint fails.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
As outlined above.
Workplace Relations Commission Adjudication Officer: Jim Dolan