ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011203
A print room administrator
A document services company
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: 08/01/18
Workplace Relations Commission Adjudication Officer: Catherine Byrne
In accordance with Section 13 of the Industrial Relations Acts 1969, this dispute was assigned to me by the Director General. I conducted a hearing on January 8th 2018 and gave the parties an opportunity to be heard by me and to present evidence relevant to the dispute.
The complainant brought a friend to represent him and he was also accompanied by two work colleagues. The respondent was represented by Ms Niamh Daly from IBEC and the Managing Director, the Operations Manager and a Service Director also attended.
The hearing on January 8th was scheduled for 90 minutes which proved to be too short to consider the written submissions and the evidence of both sides. A resumed hearing was scheduled for February 15th but the complainant did not arrive. The respondent’s representatives were in attendance and I phoned the complainant to enquire about his whereabouts. He said that he was not aware that the hearing was taking place that day and he was not in Dublin. He also said that, since the hearing on January 8th, he was in the process of moving house. He sent an e mail to the WRC on January 15th, notifying the case officer that he had changed address. I confirmed that this e mail was received. The complainant said that he was back and forward between both houses, but he had not picked up the letter with the notification of the resumed hearing.
On February 19th, the case officer wrote to the complainant to inform him that I would investigate his dispute on the basis of the written submissions of both sides and the evidence he presented on the first day of the hearing. On February 23rd, the complainant sent an e mail to say that he was consulting with his solicitor and on February 27th, he wrote saying that he was happy for me to proceed with a determination based on his written application, his supporting documentation and further correspondence that he sent to the WRC on January 24th. He also advised that he had been dismissed and he asked for this to be considered as part of my investigation.
The subject of this decision is the complainant’s objection to a written warning issued on June 19th 2017. This is the complaint submitted to the WRC on October 10th 2017 and no event subsequent to this warning is considered as part of this investigation.
The respondent company is engaged in the provision of document services such as printing and photocopying and printing software and hardware. Their main services centre is in a business park in north Dublin and they also have staff allocated to the post and print rooms of client companies. In May 2017, when the incident occurred that resulted in the written warning which is the subject of this complaint, the complainant was assigned to the print room of a legal firm in Dublin 2. He was then transferred to the main services centre in north Dublin.
On June 19th 2017, following an investigation into an incident that occurred on May 9th, the complainant was issued with a written warning. He complains that this sanction is severe, excessive and invalid.
Summary of Complainant’s Case:
In his submission to the WRC, the outline of the complainant’s dispute with his employer ran to over 6,000 words. Prior to the hearing on January 8th, he submitted 402 pages of supporting documents. I have reviewed this information to determine the complainant’s position with regard to the incident on May 9th 2017 and the aftermath which resulted in the him being issued with a written warning. Below is a summary of the complainant’s case.
Monday, 8th May
On Monday, 8th May, the complainant was working the late shift and was due to finish at 8.00pm. One of the solicitors on the client’s site needed photocopying done. In his submission, the complainant explained that the solicitor had requested three copies of a file containing around 500 pages with 120 sections, but only one copy had been made. To make the other two copies, the complainant got approval from the site manager, SM, and operations manager, OM, and he worked until 10.30pm. The documents had to be ready for the client by 11.00am the next day. Before leaving work just before 10.30pm, he sent a mail to SM:
“Dear (name of Site Manager)
“This job is completed as requested by (name of solicitor).
I formally request to be paid double time for the hours from 20.00 to 22.30 a total of 2.5 hours. Or double time in lieu…Otherwise there is no real incentive for me to do overtime. However, I will be happy to accommodate an emergency situation if double time is a go…Clocking out at 10.30 after I do a 3 minute clean up here.”
Tuesday, 9th May
The next day, the complainant was on the early shift and around 9.30am, SM asked him to come to the medical room where the complainant’s notes show that he said,
“What the hell happened last night? Why were you here until 10.00pm?”
The complainant said that SM was extremely angry and that he “snarled the questions” at him. The complainant explained that he stayed back to complete the printing job for the client. Following the discussion in the medical room, the complainant said that SM instructed him to follow him back to the print /post room, where he normally works. Two of his colleagues were in the print room and, in the presence of SM, the complainant told them that,
“SM is after speaking to me in a really threatening way and I feel really uncomfortable and upset by what has just happened and I want it to go on the record that this has occurred.”
SM responded, “you, out” and by this statement he instructed the complainant that he was suspended. The complainant said that he didn’t trust the SM and that he had “made trouble for him in the past.” He asked for a written statement to the effect that he was suspended, but he said that SM left the building.
As he was gathering his belongings, the complainant described himself as being “still in emotional shock and tearful.” While he was still in the building, the operations manager, OM arrived and asked the complainant if he could have a meeting with him. OM said that SM told him about the earlier altercation and he said that they should try to resolve things by having a meeting. OM told the complainant that he was not suspended and he asked the complainant if he would consider a meeting to try to try to resolve things through mediation. The complainant agreed and he, SM, OM and a colleague met in the medical room.
During this meeting, SM said that the complainant had taken too long to do the job that had to be ready for the client at 11.00am that day. He said it was a 30-minute job and should not have taken two and a half hours. The complainant referred to a meeting the week previously, when he said he was critical of management, and he thought that this was the reason that SM was being aggressive towards him and bullying him. The complainant said that he was slow answering the questions put to him by OM and he was “anxious and shook.” OM told the complainant that he was not suspended and he gave him the rest of the day off. The complainant’s understanding is that OM said that SM’s behaviour would be investigated.
Wednesday, 10th May
A note submitted by the complainant of the events of this day describe him returning to work and “business as usual.” The complainant’s note of a meeting between him and OM was submitted in evidence. He said that at the meeting, he gave an accurate account of what transpired between him and SM on May 9th. He outlined the change in SM’s behaviour towards him, which, in his view, was because he had criticised the management at a meeting on May 4th. The complainant’s note states:
“I consider all Irish-based managers including OM to have a conflict of interest, thus I consider them unfit to conduct an impartial and fair interview.”
“I believe HR are the correct department to carry out a formal investigation.
“I request senior members of HR team carry out this process of investigating further.
“I request an independent stenographer be present at all future meetings with regards to this issue.
“I fully stand by what I said yesterday and I will not be retracting my statement.”
He concluded his note by saying:
“I don’t understand why SM was angry with me with regards my carrying out a copying task to perfection during overtime he had authorised.”
Thursday, May 11th
In his submission, the complainant said that, at short notice, OM attempted to have another meeting with him to present allegations related to his and not SM’s conduct. He said that OM would not allow him to get writing materials or a witness and, when he refused to attend the meeting, he was suspended. He said that OM would not allow him to return to the print room to collect his bag, and OM collected it himself and placed it outside on the footpath, an action which he considered to be disrespectful.
Friday, May 12th
A copy of a letter sent to the complainant on May 12th was submitted in evidence. This letter stated that he was suspended pending an investigation into the following allegations:
“Refusal to carry out reasonable instructions from a supervisor / manager;
Conduct which does or may bring the Company’s reputation into disrepute.”
Tuesday, May 30th
The complainant was on holidays from May 22nd until the 26th and an investigation meeting took place on May 30th. The notes of the meeting submitted in evidence show that the complainant was accompanied by one of the colleagues who attended the hearing with him on January 8th. OM was assisted by a note-taker. The complainant said that on May 9th, when he confronted him about working late the night before, SM was extremely aggressive towards him and he explained that this aggression manifested itself in the way that SM looked at him. He said that he raised his voice in response to SM because he was upset and he felt bullied and threatened by SM. He said that SM was in close proximity to him and he was angry and aggressive.
At the end of this meeting, OM decided that the complainant refused to carry out a reasonable instruction from his manager and that his conduct had brought the company’s reputation into disrepute. He recommended that the matter be referred to the HR Department for a formal disciplinary investigation.
Wednesday, June 14th
The complainant said that at 11.44 on Tuesday, June 13th, he received an invitation to a disciplinary at 2.00pm the following day. He complains that this short notice was in breach of the company’s disciplinary procedure which provides for 48 hours’ notice of a disciplinary meeting. Although I examined the Disciplinary Procedure which was submitted in evidence, I could not find this 48-hour notice provision, but it may exist in a different version of the procedure. The hearing went ahead, hosted by the respondent’s Customer Services Director. The complainant was again accompanied by a work colleague. Following this meeting, on June 19th, the complainant was issued with a written warning for the following reasons:
“Not leaving the premises when instructed to do so by your line manager.
Entering into conflict with your line manager both in the print room and the customer foyer in front of colleagues and potentially (name of respondent’s client).”
The written warning issued on June 19th also contained an instruction to the complainant to change his place of work from Dublin 2 to the respondent’s services centre in north Dublin. He claims that this is a breach of the European Directive (Protection of Employees on Transfer of Undertakings) Directive 2003, as he had previously been a temporary employee with another printing company before he applied for a job and was recruited by the respondent.
The Complainant’s Argument that the Written Warning is Unfair
The complainant’s position is that he conducted himself with dignity and professionalism throughout the events described above. He said that in a situation where he was aggressively threatened by his manager, he “tactfully ensured that there were no clients present and reasonably decided to inform (a named manager) that he had been threatened in a situation where SM had caused me trauma and shock. SM then continued to humiliate me, defied any logic, including his unreasonable refusal to formally issue an official suspension. And I complied. Thus I am innocent of both charges against me.”
He also argued that the sanction was “severe, excessive and invalid” and stated that an employee should receive a verbal warning for a first transgression. In his submission, he stated:
“A more balanced sanction would be to issue a verbal/oral warning containing the improvements required of the employee in respect of the behaviour which led to the warning and the timeframe within which the improvement must be made. Thus a first written warning is an excessive punishment in these circumstances considering the balance of evidence and considering our line manager’s decision was to give me the rest of the day off…and issue an investigation into my manager’s conduct.”
The complainant is upset that his allegation that his manager’s approach to him was aggressive a, has not been the subject of an investigation. He argues that the imposition of a written warning was undeserved, as his own conduct was above reproach. If any warning was warranted, his position is that the first sanction in the company’s disciplinary procedure, a verbal warning, was more appropriate.
The complainant appealed against the decision to issue him with a written warning; however, following an appeal meeting on July 7th 2018, the warning was not revoked.
Summary of Respondent’s Case:
For the respondent, Ms Daly outlined the chronology of the events as they have been set out in the previous section.
Tuesday, 9th May
The description of the encounter between the complainant and SM on the morning of May 9th varies somewhat from the version presented by the complainant. The respondent said that the complainant refused to answer questions about why it took him two and a half hours to complete work that, in SM’s view, should have taken about 30 minutes. In response to SM’s questions, he accused him of being aggressive and angry. SM said that, to defuse the situation, he decided to leave the medical room where he met with the complainant and he walked out into the print room. SM said that the complainant followed him to the print room and continued to challenge him in front of colleagues about what he considered to be aggressive treatment. SM told the complainant to step outside, which he refused to do. SM then informed the complainant that he was suspended and asked him to leave the premises. The complainant refused to leave and began to inform colleagues and others in the public area about what had occurred between him and his manager.
OM arrived and asked the complainant to meet him. They gathered again in the medical room, this time with another colleague as a witness. OM asked the complainant for an example of the aggressive behaviour that was causing him such distress and he replied, “it wasn’t his verbal communication, but more his body language and stance.” As the complainant was upset and emotional, OM sent him home for the remainder of the day. OM said that as the complainant was leaving, he “smirked and said he was ‘going to enjoy the sun.’”
Wednesday, 10th May
When OM met the complainant the following day, he expressed the view that OM had a conflict of interest and was not an appropriate person and that no Irish manager was an appropriate person to investigate what had occurred the previous day. He demanded that the investigation be headed by the HR team in the UK.
Friday, May 12th
Following another meeting between OM and the complainant on Thursday, May 11th, the complainant was suspended. This was confirmed by letter on May 12th.
Tuesday, May 30th
A formal investigation into the complainant’s conduct resulted in the following outcome:
“Refusal to carry out reasonable instructions from a supervisor / manager
“Complainant admitted to not leaving the premises when instructed by SM to do so as he deemed (name of another manager) his manager. SM has been site manager for over a year and creates all the shifts and rosters. (The other manager) would have no day to day management interaction with Complainant so again, a point that could not be believable.”
“This has been proven as Complainant went as far as to say that (the other manager) was his manager and claimed that SM could not suspend him. I believe SM tried to protect our reputation by firstly trying to remove Complainant from the situation and when he refused to go SM removed himself and left the building to stop the situation escalating until I arrived a short time later.
“Conduct which does or may bring the Company’s business into disrepute
“I feel the evidence is very clear in that Complainant has admitted to ‘speaking down the room about SM to make a point.’ This was on a customer site and was observed by the customer when out at the lifts.
“I believe Complainant’s actions were totally unprofessional and were intended to bring Respondent’s name in (client company) into disrepute. Complainant had no other reason to behave the way he did and shout down the print room to other colleagues. He was attempting to make a scene firstly in front of staff in the print room and then later outside the print room with clients in the foyer. Had SM not composed himself and walked away from the situation and left the building I feel this could have been a much worse situation and we could have had serious exposure on site with this incident.
“Complainant refused to take part in a formal investigation meeting despite it being made clear to him that failure to follow a reasonable management instruction without course would lead to disciplinary action.
“Complainant’s conduct and unwillingness to answer questions put to him in the rescheduled investigation meeting.”
For the reasons set out above, the investigating manager referred the matter for a formal disciplinary investigation.
Wednesday, June 14th
A disciplinary hearing took place on June 14th at which the findings of the investigation into the complainant’s conduct were examined by the chairperson, the Customer Service Director. The meeting concluded with the complainant being informed that he was issued with a written warning, which, in accordance with the company’s disciplinary procedure, was to remain on his file for 12 months. He was also transferred to the company’s services centre in north Dublin. The reason for the warning was because of the incident on May 9th when the complainant refused to leave the premises when he was instructed by his manager and when he engaged in conflict with his manager in front of colleagues and clients.
The Respondent’s Position on the Written Warning
The respondent’s position is that the warning was issued because on May 9th 2017, the complainant refused to leave the premises where he worked, as instructed by his manager and he then proceeded to complain about his manager loudly in front of colleagues and members of the client’s staff.
It is the respondent’s position that evidence provided in witness statements and at the disciplinary meeting show that the complainant behaved in an unacceptable manner on May 9th. Ms Daly said that the process followed by the respondent was fair, in line with the company’s disciplinary procedure and with the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000. The complainant was afforded a full and fair investigation, he was party to a disciplinary and appeals process during which he was represented by a colleague and his rights were upheld. Ms Daly said that the respondent reached a reasonable conclusion, applying a sanction that was appropriate and proportionate in the circumstances.
The complainant alleged that he had offered “constructive criticism” to managers at a meeting on May 4th and “…it was my perception of managers’ reaction to my constructive criticism that led me to believe that the same managers involved in the Investigative and Disciplinary process had a clear conflict of interest.”
No evidence of a conflict of interest was put forward by the complainant, other than the attendance by him and managers at a meeting on May 4th. The respondent disputed this allegation that the managers who were present at the meeting disliked the complainant or would have had a conflict of interest in respect of their suitability to carry out an investigation into his conduct.
Findings and Conclusions:
I have considered this complaint and I have reviewed the documents submitted by both parties in support of their positions. During my investigation, I have been mindful of the need for balance and the requirement to maintain some perspective in circumstances where the complainant was issued with a written warning for conduct, which, in my view, on the face of it, was unacceptable. I am concerned about the voluminous documents submitted by the complainant, which included “notes to self,” diary entries and notes of what appear to be covert recordings of meetings with his manager. Apart from the behaviour which was the subject of the disciplinary investigation, from his own notes which he submitted in support of his complaint, I find that his conduct during the investigation was not acceptable.
The complainant’s reference to and appeal to the provisions of the Transfer of Undertakings Regulations has no merit. When he was a temporary employee with a different company, he applied for and was successful in his application for a job with the respondent. There are no grounds whatsoever for considering that his employment transferred to the respondent under the Transfer of Undertakings Regulations.
Was the Decision to Issue the Written Warning Reasonable and in Proportion to the Conduct?
I understand from correspondence submitted by the complainant that he has been dismissed. This investigation is not concerned with that fact, but is solely concerned with the issuing of a written warning on June 19th 2017.
While my focus is the disciplinary warning, I will apply the reasonableness test which has been established by the EAT in many instances in respect of dismissal. It is not for me toestablish the guilt or innocence of the complainant. My job is to consider if it was reasonable for the respondent to issue a written warning to him in respect of his conduct on May 9th 2017, and to consider if the warning was proportionate to the seriousness of his conduct.
An exploration of the facts relied upon by the respondent in reaching the decision to issue the warning provides the basis for the test of reasonableness. The facts are as follows:
1. On May 9th, when challenged by his manager about the necessity for working overtime the previous evening, the complainant refused to answer him and claimed that his manager’s “body language and stance” were aggressive;
2. When this altercation ended, he loudly commented on his manager’s behaviour to colleagues in the print room of the client company;
3. He refused to leave the premises when he was instructed to do so by his manager and, in a public area of the building, he continued to challenge his manager.
It is my view that the complainant’s response to a question about the necessity for overtime was defensive and inappropriate. He attempted to make the conduct of his manager the issue, rather than his own actions the night before. His subsequent behaviour during the investigation was diversionary and time-wasting. Some of the documents he submitted to support his complaint were not relevant and others were disorganised and it is regrettable that so much of the resources of the WRC were expended on this matter.
I have considered the written submissions of the parties and the evidence of the complainant at the hearing on January 8th. I find that the investigation into the incident on May 9th and the disciplinary hearing that followed were carried out with fairness and in accordance with the company’s disciplinary procedure. I find therefore, that the warning and the process which resulted in the issuing of the warning were reasonable and proportionate to the conduct of the complainant.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
The disciplinary warning issued to the complainant on June 19th 2017, expired on June 17th 2018. I make no recommendation in respect of this warning.
Dated: 20th September 2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Appeal of a written warning