ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00014639
A private charitable society
The HR 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: 25/09/2018
Workplace Relations Commission Adjudication Officer: Stephen Bonnlander
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 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 complainant lodged his complaint on 9 May 2018. The dispute was delegated to me by the Director General, for hearing and to make a recommendation on it, on 14 August 2018. I heard the parties on the dispute on 25 September 2018. Both parties submitted written statements and evidence and made oral arguments in support of their positions.
Summary of Complainant’s Case:
The complainant joined the respondent society in question as a member in 2005. He started to be employed by the respondent in 2007, to guide tours of the respondent’s premises in a historic building in central Dublin, and to take care of rentals, organisation of outside events and similar. In October 2017, an Irish news website published a video and article about the society, as a result of which the society attracted unfavourable comment on various online platforms.
When the respondent became aware of this, in November 2017, a disciplinary process commenced which the complainant contends was faulty and unfair, both as against SI 146/2000, or as against the conditions laid down in the complainant’s own contract of employment. Specific allegations include notes and minutes not made, witness statements not being made available to the complainant, and an appeals process not being available to the complainant in direct violation of his terms and conditions of employment. The complainant also argued that he should not have been the only staff member disciplined in this matter, as he insists that other staff members were also involved in approving the visit of the premises by the journalists.
The complainant was given a 12-month written warning, which he seeks to have expunged.
Summary of Respondent’s Case:
The respondent accepted the dearth of written records and witness testimonies in terms of the proceedings which led to the disciplining of the complainant. It insisted nevertheless that the complainant had a chance to bring an appeal. The respondent also argued that the other staff members in question were not senior enough to approve the journalists’ visit, and that only the respondent’s CEO was in a position to sanction it.
Findings and Conclusions:
The respondent is an organisation with a long history in European culture, and which over the centuries has attracted a considerable amount of unfavourable comment from outsiders, usually not on the basis of any identified wrongdoing, but for the considerable emphasis it places on the privacy of its activities. In other words, the unfavourable online comments which resulted from the article and video, are not the first ones in its corporate history. That said, the respondent would have as much a right as any employer to investigate such negative publicity. I cannot accept the argument by the complainant’s representative that because no formal complaint was made against the complainant, he should not have been investigated. It must also be noted that the complainant is identified by name in the article and featured in the video.
That said, I agree that the investigation had many faults: the complainant was not even aware until the day of the WRC hearing that another staff member had been interviewed, no notes were kept of her interview, and the complainant was therefore not given any opportunity to comment on her testimony.
Specifically, as regards the issue of an opportunity to appeal, I am satisfied that the complainant made a written request to have an appeal heard by an appropriately senior member of the organisation, after being advised that he could do so in his written warning letter. I further accept the complainant’s direct evidence that he was given no such opportunity, but rather, in his words, “was pulled out of [his] daily duties and denied an appeal within three minutes” by the person he had appealed to.
Last, whilst the respondent insisted that the general instruction was that only the respondent’s CEO could authorise filming, I note that the only written record of the complainant being so instructed is his actual disciplinary hearing in June 2017.
All of this reflects very poorly on the respondent, an organisation whose corporate values are rooted, inter alia, in the Enlightenment values of justice and fairness. As against that, I cannot entirely disregard the fact that the complainant was himself a member of the respondent organisation rather than simply an outside employee, and therefore ought to have been familiar with its focus on privacy both as a member and in terms of his job title, which may be rendered in modern English as “Head Guardian”. (I cannot give the complainant’s exact title in this recommendation without identifying the parties to the general public.) The point is, the complainant was employed to be more than a mere buildings manager, who is less familiar with the culture of the respondent. As such, and given that the complainant “stars” in the journalist’s piece, I cannot accept that the complainant can devolve responsibility for what transpired entirely to other colleagues who he claims sanctioned the matter. He should have satisfied himself that the matter was sanctioned at an appropriately senior level before getting involved.
Some sanction of the complainant is therefore not inappropriate, but certainly, in light of the significant procedural shortcomings on the respondent’s part as outlined above, a 12-month written warning is way too harsh. I therefore recommend that the duration of the warning is reduced to three months, and given that the original warning was issued on 15 March 2018, that it be removed from the complainant’s personnel file forthwith.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
As noted above, I recommend that the duration of the complainant’s written warning is reduced to three months, and given that it was issued on 15 March 2018, that it be removed from the complainant’s personnel file forthwith.
Dated: September 27th 2018
Workplace Relations Commission Adjudication Officer: Stephen Bonnlander
Written warning – procedural faults – no opportunity of appeal – dearth of written records – personal membership and special familiarity with respondent culture places extra responsibilities on complainant.