ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00013412
A Relief Process Operator
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: 17/07/2018
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The Worker is employed as a Relief Process Operator within the plant and is required to provide cover in position for which he has received an appropriate training. The Worker was issued with a second stage written (first) warning on 15th April 2016. He contends that the decision to issue him with a disciplinary sanction was unfair and unwarranted on both procedural and substantive basis.
Summary of Worker’s Case:
The Worker submits that he is employed as a relief process operator within the plant and is required to provide cover in positions for which he has received appropriate training. This facility is required to provide cover in circumstances where there is a requirement to fill gaps in the production process arising from sick leave etc. The requirement on the Employer under the provisions of the Company/Union Agreement is to provide 7 days’ notice where there exists a requirement for an employee to change shift pattern. During this notice period the current agreement provides that the existing production team will cover the process requirements. On Friday 4th March 2016 while completing a night shift the Worker was advised by Mr V, Warehouse Manager that the company were changing his current shift pattern and that he was being instructed to commence a new shift pattern on the following Monday. The Worker advised Mr V that he was willing to change his shift arrangement but because of family commitments he was not in a position to affect the shift change immediately and that he did require appropriate notice. Mr V insisted that the shift change would be implemented immediately. This matter was placed in dispute by the Trade Union and accordingly the Worker attended his next working day as per existing roster. On resuming work the Worker was approached by his supervisor Mr P and was advised that Mr V was insisting the Worker would comply with the shift change. Again, the Worker advised that it was not feasible for him to do so and that he was exercising his entitlement to receive appropriate notice. The Worker further advised that he did not require the full seven days’ notice and was in a position to commence the new shift pattern on 9th March 2016. On the basis of this dispute Mr V commenced an initial investigation under the disciplinary procedures which he himself conducted. During the course of an investigation meeting the Worker was advised that if he had a difficulty in relation to the initial days of the shift change Mr V was agreeable to applying annual leave for that period. The Union position remained unchanged in respect of the requirement on the company to give the appropriate agreed notice. Arising from the investigation the Worker was advised that he was being disciplined for lack of cooperation with a company instruction. The decision to issue this disciplinary sanction was taken and implemented by Mr V. The internal appeal mechanism in accordance with the grievance procedure has five separate levels, each of which has been exhausted by the union committee without this matter being resolved.
SIPTU on behalf of the Worker submits that it has an obligation to ensure that agreements entered into on behalf of its members are not diluted by the Employer seeking to circumvent those agreements under the threat of the disciplinary process. Furthermore, SIPTU submits that as a union it has responsibility to challenge any process that denies its member the fundamental entitlement to the application of fair procedures. SIPTU submits that the Worker had an entitlement under the provisions of the collective agreement to seven days’ notice of a requirement to change his shift pattern to a new shift. The Worker exercised that entitlement. However, the Employer has used the disciplinary process to undermine that entitlement. This is not a reasonable or an acceptable use of the disciplinary procedures. SIPTU does not accept the legitimacy of a disciplinary process whereby the manager who issued a disputed instruction to the Worker also investigated the matter and decided that disciplinary sanctions were warranted and ultimately issued the Worker with a written warning. This is not the first time that this Employer has adopted this type of approach to disciplining its workers. In this regard, SIPTU presented a Rights Commissioner and the Employment Appeals Tribunal decisions in respect of the Employer, both criticising this approach. SIPTU submits that both these decisions reflect an absolute necessity in any disciplinary process of the requirement for impartiality in the decision-making process. The process engaged in by the Employer in disciplining the Worker is absolutely devoid of that requirement and as such runs contrary to the application of due process as required by SI 146/2000 which clearly stipulates under Section 6; “That the employee concerned has the right to a fair and impartial determination of the issues concerned.” SIPTU argues that the decision to issue the Worker with a disciplinary sanction was flawed both substantively and procedurally and as such cannot be allowed to stand.
Summary of Employer’s Case:
IBEC on behalf of the Employer submits that claim is in respect of a Stage 2 warning which was issued in 15th April 2016 and was placed on the Worker’s file for a period of twelve months. The warning expired on 14th April 2017. On the basis that the warning was expunged from the file, the Employer argues that the claim is null and void. In that regard, the Employer relies on High Court ruling in Pierce Dillon v Board of Management of Catholic University School  IEHC 674 whereby the applicant who had been issued with a final written warning proceeded with a claim to have the warning quashed from his file. However, the warning has expired by the time the applicant brought his application to the Court. Mr Justice Twomey relied on two legal principles, mootness and the de minimis rule in reaching conclusion that the application, if granted, would result in scarce public resources being unnecessarily wasted.
In support of its case the Employer’s representative citied also Barry v Fitzpatrick (1996 IRLM 512), Donovan v De La Salle College (2009 IEHC 163), Tracey v Burton:2016 IESC, Dillon v Board of Management of Catholic University School 2016 IEHC 674. IBEC noted also that this has been affirmed by the Labour Court in recent times where they have clearly stated that they can only make a decision on a sanction that is live and active. In this instance it does not apply. IBEC argues that the Adjudicator does not have jurisdiction to hear this claim as similar to that in Barry v Fitzpatrick the warning has ceased to have any effect, therefore it is a pointless exercise and one which no court should undertake. Therefore, the claim should not be heard in the first instance.
Without prejudice to the above, the Employer sets out the statement of facts leading to this claim. The Employer submits that the Worker is employed as a permanent full time Production Operator. On 15th April 2016, the Worker was issued with a Stage 2 – Second (Written) Warning as a result of an incident regarding a lack of cooperation with management in 4th March through to 8th March 2016. This warning was issued following an investigation that a clear instruction had been given to the Worker by Mr P and Mr V. The Worker had been advised by Mr V of the correct protocol to be followed if he wished to bring a grievance to the management, that is to work under protest and raise a grievance, but this was not followed. The Worker had stated that there is a Works Agreement which provides for one weeks’ notice for a shift change. It was the Employer’s position that the very nature of the Technical Relief Operators (TRO) position does not require one weeks’ notice for a shift change. The Works Agreement only applies before the commencement of a new shift, however, the Worker was moving within his shift cycle and was being requested to move within his existing shift pattern, and the notice provided complied with this agreement. The Worker appealed the decision and in line with the Company/Union Agreement there is a five-stage appeal process. The Worker’s appeal was heard shortly after the issuing of the warning and in his first stage of appeal, the Employer’s decision was upheld. Stage 2 appeal was conducted and the outcome was issued on 16th June 2016. At this appeal the TRO agreement was reviewed in detail and it was found as per the Employer/Union Agreement that “Technical Relief Operators are not necessarily limited to covering within these areas and will be required to cover in other areas based on business proprieties”. The finding was that the Worker has been requested to move based on business priorities which was in line with the company agreement. The Stage 3 appeal outcome was issued on 16th November 2016 and this was similarly followed by Stage 4 in May 2017 and Stage 5 in February 2018. At all stages the company decision was upheld. The Employer argues that the reason the Worker has been given Stage 2 Warning was because his actions were viewed to be serious misconduct in that he failed to follow management instructions and did not adhere to the correct protocol. The protocol was that, should he have a grievance, to raise it in line with the company/union procedures, he should work under protest and raise a grievance. The Worker was provided with the full rigours of natural justice throughout the disciplinary process, In relation to the procedures used to implement this sanction, the Worker was afforded all benefits of fair procedure, in line with the company’s established policy, the Worker was informed in advance as to the nature of the complaint against him, He was afforded the right to representation, which he exercised, during all procedures, He was further provided with a fair and impartial hearing, at which he was given an opportunity to respond to the allegations against him. All the evidence in its entirety was considered, including the Worker’s representations, before any decision was made or action taken. The Worker was afforded the right to appeal on five occasions, which he availed of. In this appeal, the Worker’s specific objections were addressed. The Worker was also clearly informed as to the outcome of any decision at each stage of the process. In light of the above, the Employer believes it to be clear that the sanction awarded to the Worker was procedurally fair in all respects. To type pf behaviour which the Worker demonstrated constituted misconduct and could not be tolerated and the Employer had no option but to issue the Worker with Stage 2 written warning.
Findings and Conclusions:
The within dispute relates to a Stage 2 – Second (Written) Warning issued to the Worker on 15th April 2016. The warning, as per the Employer’s procedures expired on 14th April 2017 and was expunged from the Worker’s file.
The Company has a comprehensive written Disciplinary Procedure which has been agreed with the Trade Union. SIPTU on behalf of the Worker contended that the decision to issue the Worker with a disciplinary sanction “was flawed both substantively and procedurally and as such cannot be allowed to stand.” The Employer disputed the Union’s contention and held that it had engaged in a fair process as per the Company’s procedures. The procedures provided for 5 levels of appeal which the Worker utilised. The warning was upheld on each of the appeals. The Employer confirmed that the warning expired on 14th April 2017 and was expunged from the Worker’s file.
Recommendation: (strictly pertaining only to the facts of this Dispute)
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
This Recommendation is confidential to the Parties and cannot be used by them or any other person in relation to any other dispute at this or any other forum.
The warning issued to the Worker expired on 14th April 2017 and was expunged from the Worker’s file. I am satisfied that this resolves the matter.
Workplace Relations Commission Adjudication Officer: Ewa Sobanska