ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00008308
Parties:
| Worker | Employer |
Anonymised Parties | A Membership Support Officer | An international voluntary organisation |
Representatives | Gerard Kennedy SIPTU | Tommy Cummins, Adare HRM |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00011009-001 | 27/04/2017 |
Date of Adjudication Hearing: 11/01/2018
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Procedure:
In accordance with 13 of the Industrial Relations Acts 1969 following 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.
Background:
The Worker has been employed by the Employer since 2008 as a Membership Officer. In 2014 she was successful in being promoted to the position of Membership Support Officer. She works 37.5 hours a week and is paid €711 gross. She is seeking an investigation into a dispute she had with her Employer relating to the application of fair procedures in respect of a disciplinary process and confirmation that in the future the Employer will adhere to fair procedure. |
Summary of Worker’s Case:
SIPTU on behalf of the Worker submits that in April 2016, the Employer appointed a new Regional Co-ordinator Ms P. Prior to this appointment the organisation had never found fault with the Worker’s work, she was well regarded and had an exemplary disciplinary record. However, almost right from the outset of Ms P’s appointment alleged difficulties began to arise in respect of the Worker’s work performance. Between September 2016 and April 2017, the Worker was required to attend four performance review meetings with Ms P accompanied by the Worker’s national line manager Ms M. Prior to Ms P’s appointment performance review meetings had been a feature of the employment but would have been conducted on a one to one basis by Ms M. During these one to one sessions there was absolutely no indication given that the organisation had any difficulty with the Worker’s performance. Ms P in her subsequent correspondence following these performance reviews clearly identified that if the Worker’s performance did not improve that it could lead to disciplinary action. Given the clear indication that possible disciplinary sanctions were under consideration the Worker sought the facility of being represented by her trade union at these meetings, this facility was denied. Arising from the fourth such interview meeting the Worker received correspondence from Ms P dated 11th April 2017 inviting her to a disciplinary hearing that she herself would be attending. The letter also confirmed that following these proceedings the organisation may need to take disciplinary action up to and including dismissal. SIPTU wrote to Ms P on 13th April 2017 seeking clarity as to whether the Worker was requested to attend a disciplinary investigation or a disciplinary hearing. Further information in respect of the investigation process was sought. The letter also highlighted the union’s objection to Ms P’s participation in any disciplinary process on the basis that in effect she was the complainant. Ms P responded by letter of 25th April 2017 and confirmed that the Worker was required to attend a disciplinary hearing, she confirmed that there was no need for a separate investigation given the process engaged in to date by management. This view was expressed even though the Worker had been denied her requested right to representation in those engagements. Ms P confirmed that she was not prepared to recuse herself from the disciplinary hearing. The hearing was held on 27th April 2017. In attendance was the Worker, her union representative, Ms P and Ms B (HR). At the outset of the meeting SIPTU again objected to Ms P’s participation in the process. The union also challenged the process in the failure by management to conduct a separate investigation into the matters under consideration. The meeting was concluded on the basis of SIPTU confirming its intentions to refer a complaint to the WRC on the basis of management failure to apply fair procedures. Subsequently, the Worker received a letter from Ms P dated 9th May 2017 inviting her to a reconvened disciplinary hearing. The letter confirmed that the organisation rejected any allegations that Ms P could not act in impartial capacity but went on to confirm that on this occasion the Employer were prepared to appoint a new disciplinary panel. The letter did not address the question of a separate investigation process. In addition, SIPTU received correspondence dated 8th May 2017 from Ms M, Head of HR Shared Services. This letter set out a number of criticisms in respect of the position adopted by the union at the meeting on 27th April 2017. Those criticisms were answered in full by letter dated 11th May 2017. The letter further advised that a complaint has been referred to the WRC. The Complainant’s representative submits that they fully accept the right of any employer to engage in a disciplinary process where necessary. However, they also insist that any such process must be conducted in a manner that fully accepts the rights of a worker to due process and fair procedures. They challenge the disciplinary process that fall short of the requirement of natural justice. They raised the following points: 1. The worker was required to attend four separate performance review meetings which as confirmed by management could lead to disciplinary proceedings. The Worker sought her right to representation during this process. This request was denied, despite the fact that the management subsequently relied on the content of these meetings as a substitute to a separate investigation process. 2. In the letter of invitation to the disciplinary process it was clearly identified that the outcome of the proceedings could result in the Worker’s dismissal. The Employer’s own disciplinary procedures and the Worker’s contract of employment prescribe that the question of dismissal could only be considered following a full investigation. No such investigation has taken place. 3. The Employer has supported and continues to support a view that it is appropriate that the complainant in a disciplinary matter is also entitled to participate as a decision maker in the disciplinary process. This view offends every principle of natural justice and is totally incompatible with the provisions of S.I. 146/2000 which states that any employee subject to disciplinary proceedings has a right to a fair and impartial determination of the issues concerned. The application of due process and fair procedure is fundamental to the conduct of any fair and reasonable disciplinary process. By definition the absence of same in a disciplinary process renders it both unfair and unreasonable. The Worker seeks confirmation from the Employer that they will ensure that any future disciplinary processes will be conducted in accordance with S.I. 146/2000 and principles of natural justice and fair procedure. |
Summary of Employer’s Case:
The Employer submits that there was an ongoing dispute regarding the Worker’s performance. A number of meetings were held with the Worker in relation to her performance. The Employer’s managers discussed with the Worked areas of concern, where her performance was unsatisfactory, ways to improve, etc. Informal corrective action was taken by having these meetings, discussing those areas of underperformance, offering supports and providing the Worker with time to improve. At the third meeting the Employer explained to the Worker that these areas of underperformance could become a disciplinary issue and wrote to her specifying those areas requiring improvement. At the fourth performance review meeting those areas of underperformance had not improved and additional areas of concern arose warranting a formal disciplinary meeting. The meeting was to further explore and discuss these matters and to determine if disciplinary action is warranted. At this stage the Worker was informed that she may attend the meeting with a representative. These matters have not warranted a separate investigation given the nature of the issues under consideration and the previous review meetings held. The Employer agreed that the use of words “up to and including dismissal” as a possible disciplinary action was unfortunate as no dismissal was considered. The Employer admitted that there were some minor shortcomings in the process. However, the Employer highlighted that they made an effort to address the issues. Following the initial disciplinary meeting the Employer appointed an independent panel to conduct the hearing, as requested by SIPTU. The decision to issue verbal warning was made independently by this panel. The Employer confirmed that the verbal warning was in the Worker’s file for the period of six months and has since been expunged. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. Firstly, the Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations, and also extends to disciplinary processes brought under Section 13 of the Industrial Relations Act 1969 as follows: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.” Therefore, my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases. Having examined the disciplinary process in question and for the reasons outlined on behalf of the Complainant, I am not satisfied that the Respondent conformed to the generally accepted standard of fairness and objectivity. I find that any Employer has the right to review the performance of their workers. I would not advocate the attendance of representatives, including trade unions at such performance review meetings. However, on the basis of said evidence I find the disciplinary procedure which followed was flawed. My main concern in this regard relates to the fact that Ms P, the Regional Coordinator was permitted to handle the disciplinary process having been involved in the performance review meetings and ultimately being the complainant in respect of the Worker’s underperformance, which led to the disciplinary process being instigated. I note that the Worker does not seek the warning to be removed and seeks confirmation from the Employer that they will adhere to principles of natural justice and fair procedure in the future. At the hearing the parties confirmed that the warning issued to the Worker has expired and has been expunged from the Complainant’s file. I find that the Employer expressed a genuine commitment and gave assurances that they will adhere to the principles of natural justice and fair procedure and any disciplinary process in the future would be dealt with in accordance with the provisions of S.I. 146/2000. |
Recommendation:
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. I recommend that the Employer implements disciplinary procedure that complies with the principles of natural justice and fair procedure. I am satisfied that the above commitment given by the Company resolves the matter. |
Dated: 1st May 2018
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Key Words:
Flawed disciplinary process |