ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00016298
Parties:
| Complainant | Respondent |
Anonymised Parties | Communications worker | Communications provider |
Representatives | Self- represented | Respondent’s HR personnel |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00021147-001 | ||
CA-00021727-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
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.
Background:
The complainant had been employed with the respondent, a communications provider, since September 2007. He was issued with a first written warning on 14 August 2018 for having used his personal phone while on a call to a customer whom he put on hold contrary to company policy. He was not offered an opportunity to have union representation at the first meeting. He wants this warning to be removed His second complaint concerns a false allegation made against him in February 2018 that he placed a customer on hold and left his desk. He wants the respondent to withdraw this statement. He submitted his complaint to the WRC on 15/8/2018. |
Summary of Complainant’s Case:
CA-00021147-001. Complaint under section 13 of the Industrial Relations Act, 1969. On Friday morning the 15th June 2018 the complainant received an email from the front-line supervisor inviting him to a meeting. At that meeting the supervisor asked him if he had taken a personal phone call whilst he was working in the call centre on Monday 11th June 2018. He explained to her that there was a strong chance that he did take a mobile call, but he could not confirm that until he had researched and recalled the day in question. He then explained to her that the day in question he had a few missed calls from the nurse in his GP’s surgery. He advised that the call was in relation to blood tests results- done because of illness absences. He had been on sick leave from late May 2016 to early February 2017, from early March 2017 to early April 2017 and also for one week in July 2017 due to physical and mental stress symptoms that were linked to the work place. The supervisor advised him that under the Company's disciplinary process his name was going to be forwarded to local management which could result in him being furnished with a first written warning letter due to gross misconduct. He was alarmed by this meeting because the supervisor started discussing the Company's disciplinary process and possible disciplinary sanctions even though he was not advised of the right of union representation in the email inviting him to the meeting that morning contrary to the provisions of par 3.1 of the disciplinary procedure which states “At all stages of the procedure (including the appeal stage) employees will be advised of their entitlement to Union assistance in making representations or responding to any matter raised with them under this procedure. In advance of attending any meeting held under this procedure the employee will also be advised of their right to be accompanied by a Trade Union representative.” The respondent thereafter went through the stages of the disciplinary procedure. He was issued with a first written warning on 14 August. He appealed the decision. His appeal was rejected on 13 September 2018. He requested records of meetings with management through a GDPR data request, but the respondent did not oblige or provide him with the name of the person who had submitted the complaint. He maintains that the warning should be removed as He was not advised of the right to have union representation at the meeting on the 15 June. His commitment to all of his work duties and staunch work ethic is evident. His call rejection rate at the call centre is very low. The disciplinary sanction has had a negative impact on his health. During June and July 2018, he observed two staff members place customers call on hold and nothing in the way of disciplinary action came their way as a result. The complainant advises that the respondent told him in January and February 2018 that staff were permitted to take emergency calls. The complainant maintains that the call on 11 June intended to provide him with results of blood tests was an 'emergency call'. The complainant submitted a letter from his GP dated 2 January 2019 stating that he has been suffering from poor mental health which could potentially and intermittently affect his judgement. CA-00021727-001. Complaint under section 13 of the Industrial Relations Act, 1969. This complaint refers to what the complainant states is a false allegation made against him in February 2018, that he had put a customer on hold and left his desk without permission. He asked the respondent on 12/9/2018 to withdraw this accusation. He made a protected disclosure via an email on Friday 02 February 2018 to the front-line supervisor at approx. 13:30. The protected disclosure centred around a staff member deliberately leaving his call centre phone off the hook. The complainant later that day received an apology via an email from the front-line supervisor. The complainant asks the adjudicator to consider LCR 21524 in the light of his complaint. |
Summary of Respondent’s Case:
CA-00021147-001. Complaint under section 13 of the Industrial Relations Act, 1969. The respondent’s evidence demonstrated to them that the complainant did put an external call on hold and take a personal call on his private mobile on 11 June. This was a breach of standard best practice. The respondent maintains that they followed the disciplinary procedure to the letter and they are not minded to accede to the complainant’s request to withdraw the first written warning. The meeting of 15 June 2018 was a preliminary meeting to establish the facts. It wasn’t part of the disciplinary process. The disciplinary process was activated after the morning’s meeting of the 15 June, and after the supervisor considered the complainant’s admission that there was a very good chance that he took a personal call. The respondent complied with the various stages of the procedure. They issued a first written warning on the 14 August as the complainant had been advised in February 2018 that he must not put calls on hold while taking a personal call. The reasons advanced by the complainant in the appeal and in correspondence as to why no sanctions should be imposed did not dissuade them from upholding the decision to issue him with a first written warning. Contrary to his suggestion that the call which he put on hold may have been an internal call, their records show that it was an external call. They afforded him he opportunity to be accompanied by a union representative. The complainant also cited mental health reasons as to why a sanction should not be applied. The respondent advises that there was no indication from either his own GP or the Occupational Support Unit that he was unable to comply with the normal standards expected of an employee or engage with the company’s processes. The letter from his GP, dated 2/1/2019 and submitted the day prior to the hearing was not previously available to the respondent. CA-00021727-001. Complaint under section 13 of the Industrial Relations Act, 1969. The respondent states that they wish to confine their response to what is on the complaint form submitted on 15 August 2018. Their written submission contains a record of a meeting held between the front-line supervisor and the complainant on 7 February 2018. The note states that he was verbally advised in February that he should not leave his desk or put a customer on hold. This was not formalised. |
Findings and Conclusions:
CA-00021147-001. Complaint under section 13 of the Industrial Relations Act, 1969. It is not disputed that the put a customer on hold while he took a personal call. The complainant asks that I recommend the removal of the first written warning. The complainant does so in the main because of his understanding that the meeting on the morning of the 15 June with the supervisor was part of a disciplinary process. I accept that par 6 allows for preliminary enquiries. The complainant asks that the failure of the respondent to provide him with the names of the person who reported him is indicative of an improper use of the procedure. Section 8 of the procedure requires that any relevant material relied upon by the respondent should be disclosed. The record of the call was provided to the complainant. The respondent is not obliged to permit the complainant to cross examine a witness. I do not consider the call on the 15 June to be an emergency call. I accept that he could have waited until he had finished the call with the customer. The disciplinary procedure provides for a stepped approach. While it does allow latitude as to which sanction should apply in which given set of circumstances, Par 10.1 provides for a verbal warning where the employee has failed to reach the required level of performance or conduct having been spoke to informally regarding the matter on a previous occasion. The complainant had been spoken to informally. The complainant is not on a verbal, current warning. None has issued. Par 10.2 states” a first level written warning will ordinarily only be issued where an employee on a verbal warning, which is still current fails to show sufficient improvement in that aspect of their past performance conduct or attendance.” These are the steps ordinarily employed. I do not consider that respondent has shown how the breach of a standard best practice though entirely unacceptable warrants the leapfrogging over the verbal warning and merits a departure from what the disciplinary procedure ordinarily provides for. The lesser sanction was available. I recommend that the written warning be removed. I recommend that the complainant is provided with time to engage with an employee assistance programme to assist him in meeting the valid expectations of the respondent. CA-00021727-001. Complaint under section 13 of the Industrial Relations Act, 1969. I recommend that the complainant use the grievance procedure to correct what he states is a false accusation made in February 2018.I was not presented with any evidence to show that internal procedures had been exhausted in an effort to resolve this matter. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the disputes 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.]
CA-00021147-001. Complaint under section 13 of the Industrial Relations Act, 1969 For the reasons stated above, I recommend that the written warning be removed from his file. I recommend that the employee is given time to engage with the employee assistance service. CA-00021727-001. Complaint under section 13 of the Industrial Relations Act, 1969. I recommend that the complainant use the grievance procedure to correct this matter. |
Dated: August 9th 2019
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Removal of written warning. |