ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00018950
Assistant Support Worker
Unite the Union
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: 15/05/2019
Workplace Relations Commission Adjudication Officer: Marie Flynn
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 has been employed by the Employer in a residential care facility for individuals with intellectual and mental health issues since 13th May 2017.
On 3rd October 2018, a reportable incident arose between the Complainant and a Service User which was deemed sufficiently serious to warrant action under the Employer’s disciplinary procedure and resulted in the Worker receiving a final written warning. This was reduced to a first written warning on appeal.
Summary of Worker’s Case:
The Worker submits that he was issued with a first written warning which he considers to be unfair and disproportionate. He is seeking to have the warning removed from his record.
Whilst the Worker accepts that he spoke inappropriately to a Service User, he submits that his previous exemplary behaviour and the fact that he apologised to the Service User, who accepted his apology, and that the Service User apologised to him, should have been taken into account when deciding what sanction, if any, should be applied.
The Worker also submits that the investigation, disciplinary and appeal process which led to the written warning was flawed throughout. Amongst his issues of concern are that: the same management personnel were involved in too much of the process; witnesses were treated differently; management totally ignored representations made on the Worker’s behalf by his union official; minutes of conversations with witnesses were never signed off on, or agreed with the witnesses; minutes of the appeal meeting were inaccurate and missing input from the Worker which was later raised with management but ignored.
The Worker further submits that, in addition, management found that he breached their Social Media Policy but they failed and refused to define or state what clause or section he had breached.
Summary of Employer’s Case:
The Employer submits that:
The Employer is entitled to decide on the appropriate sanction in disciplinary matters based on the facts of the case and in line with company policy. In this case, the Worker is an experienced Assistant Support Worker, with over 2 years' service with the Employer, and had an opportunity to diffuse an escalating situation with a vulnerable Service User, in line with his training, rather than engaging in an inappropriate verbal exchange.
The Worker's verbal exchange with a Service User on 3rd October 2018 was highly inappropriate and agitated the Service User to the point of shouting, which alerted staff in another room.
Furthermore, during the disciplinary investigation, it came to light that the Worker responded to messages from the Service User through social media which is contrary to the Employer's Social Media Policy and Code of Conduct.
At the core of any organisation is the need for satisfactory standards of behaviour and conduct. As such the Employer's decision to issue a first written warning was reasonable, fair and appropriate in the circumstances.
The Employer would in fact contend that a first written warning for a verbal altercation with a Service User would normally be considered lenient. However, the Appeal Manager took into consideration the Worker's clear disciplinary record, and that he apologised to the Service User after the incident.
A lessor sanction would undermine the Employer’s most basic requirement that frontline staff must ensure that Service Users' dignity and welfare is paramount in all interactions, especially escalating or heightened incidents.
It is also the Employer's position that the decision reached was procedurally fair in all respects. The process followed was in line with the universal principles of natural justice and fair procedures, and the Employer's established policy.
The Employer's disciplinary procedure clearly states that "the disciplinary procedure can be invoked at any stage, depending on the circumstances and seriousness of a situation and the process can be entered into at any appropriate stage" and that: "there may not always be a requirement to conduct an investigation meeting with a team member".
The statements received from the Worker and his colleagues indicated that the matter was sufficiently serious to move to a disciplinary investigation and the key fact that the Worker had spoken inappropriately to a Service User was not in dispute.
Prior to any decision being made, the Worker was informed of the allegation against him, provided with all relevant documentation and evidence, and was made aware of the potential consequences of his behaviour. He was afforded the right to representation at all meetings, was given the opportunity to state his case, and each stage of the process was carried out by separate, impartial managers (evidently, given that the initial sanction was over-turned at appeal stage).
Findings and Conclusions:
I have carefully considered the submissions, both oral and written, made by the parties.
The Worker asserts that the disciplinary process followed by the Employer was flawed and in breach of their own procedures. The Worker also contends that the sanction which was applied was disproportionate.
The Employer, on the other hand, maintains that the disciplinary process was fair and that the sanction was reasonable in the circumstances of this particular case.
I find that the flaws identified by the Worker are not sufficient to render the process unsafe. The fact that the original sanction of a final written warning was reduced to a first written warning on appeal is persuasive in this regard.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the Worker accepts the first written warning which will expire on 6th November 2019.
Workplace Relations Commission Adjudication Officer: Marie Flynn
Appeal of first written warning