ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00022850
Product Builder Packager
Manufacturer in musculosketal healthcare
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: 29/10/2019
Workplace Relations Commission Adjudication Officer: Patricia Owens
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 complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This is a claim brought under Section 13 of the Industrial Relations Act, 1969 by the Claimant against her employer. The matter at issue is a verbal warning which the Claimant alleges should never have been issued as the Respondent failed to follow due process. The Respondent disputes this claim
Summary of Complainant’s Case:
The Claimant has been employed by the Respondent since September 2016 and contends that she has had a positive employment record throughout that time except for the matter at issue. She advised that she was out sick on 11th April 2018 and again for a further 2 days on 18th and 19th June 2018. On both occasions she completed a return to work interview with her supervisor upon her return and she received a formal counselling for the June absence. She had a further 3 days of absence from 24th to 26th October 2018 for which she provided a medical certificate. She received written confirmation of 5th November 2018 that a verbal warning was issued to her by her supervisor in relation to the third absence, a warning which was live for a six-month period. This communication was received by hand on 13th November 2018.
The Claimant appealed this sanction claiming no investigation took place and that she did not get the opportunity to raise matters by way of mitigation. She contended that this was in breach of the company Disciplinary Procedure. She submits that the Respondent “ignored their own procedure and therefore this warning should never have been issued”.
An appeal hearing took place and consequently the sanction was revoked on 17th December 2018. The Claimant submits that there were three possible appeal outcomes provided for in the Respondent’s Disciplinary Policy as follows: the outcome holds, the outcome is altered, or the outcome is removed. The Claimant submits that in this instance the outcome was removed but nevertheless, the Respondent unilaterally decided to start the process all over again.
The Claimant submits that on 2nd January 2019 she was requested to attend an investigation meeting under the Respondent’s Disciplinary Policy. The Claimant submits that she raised concerns that she could not now receive a fair investigation because the outcome of the “verbal warning” as determined by her Supervisor would bias the outcome of any investigation. She advised that it resembled a situation of “double jeopardy” which multiple laws protect against. She also raised concern that this procedure was in breach of the Respondent’s Disciplinary Procedure and the Respondent’s Code of Ethics. Despite raising concern about this process at the time of receipt of notification the process went ahead. The investigation meeting took place on 3rd January 2019 and the report of that investigation concluded that the Claimant “has a case to answer”.
The matter was then considered at a disciplinary hearing which took place on 1st March 2019 and that hearing concluded that the Claimant should receive a verbal warning. This was issued to the Claimant on 15th March 2019.
The Claimant appealed this sanction once again on grounds of breach of process and procedure and critically, on the grounds that the issue had already been decided by the first appeal process. The appeal concluded that the verbal warning held.
The Claimant submits that these sanctions would not have issued but for the fact of her trade union membership and she described a discussion where she was challenged about this in front of colleagues.
The Claimant submits that the she was informed by the Respondent that her performance review rating was capped as a result of the second verbal warning issued to her which resulted in financial loss to her.
The Claimant submits that the warnings should never have issued, that the Respondent behaved unfairly and unreasonably and that the warnings should both be revoked and all reference to them removed from the Claimant’s record/file.
Summary of Respondent’s Case:
The details of the absences in April and June of 2018 are accepted as correct by the Respondent. The Respondent submits that the Claimant received formal counselling in accordance with Step 2 of the Respondent’s Policy which would remain on file for a period of 6 months. The Respondent submits that Step 3 of that policy states that if there is another occasion of absence while the formal counselling is still live then a Formal Warning may be issued and in accordance with that provision the Claimant received a verbal warning letter on 5th November 2018 as a result of further absence of 3 days from 24th to 26th October 2018.
The Respondent confirms that an appeal was lodged by the Claimant in November 2018 and that the Business Unit Manager who heard the appeal decided to revoke the verbal warning because the general principles of fair procedures and natural justice had not been upheld. This conclusion was because “an error had been made in the process followed and no formal investigation was held prior to the issuing of the verbal warning”. The Respondent submits that as the fact of the absence was not itself in dispute the Business Unit Manager decided that the question of the Claimant’s absence from 24th October to 26th October 2018 be remitted to another manager for investigation in accordance with the Respondent’s procedures in order to rectify the error originally made by the Respondent. The Respondent submits that these actions are in keeping with what any reasonable employer would do in similar circumstances and that the procedural error should not prevent the Respondent from addressing the absence. The Respondent submits that the absence policy is generous in its’ terms and therefore the Respondent must be vigilant in managing attendance.
The Respondent submits that the Production Supervisor (Production Supervisor 1) conducted the investigation in accordance with the Respondent’s procedures in early January 2018 and provided copies of notes of the meeting and the investigation report.
Consequent to that report a Disciplinary Hearing was held on 1st March 2019, conducted by a separate Production Supervisor (Production Supervisor 2). The outcome of this Disciplinary Hearing was that the Claimant was issued with a Verbal Warning which was communicated to her in a letter dated 15th March 2019. The Respondent submits that the warning was backdated to 26th October 2018 so that the Claimant was not prejudiced by the Respondent’s mishandling of the initial verbal warning in terms of the duration the warning would remain live.
The Respondent submits that the Claimant again appealed this warning by email of 20th March 2018. This appeal was conducted by the Associate Director of Manufacturing who concluded that the decision to remit the absence from 24th to 26th October 2018 for investigation was warranted, that the investigation and subsequent disciplinary meeting were as a direct result of the level of absence within a set time period, that fair process and procedure was applied and so decided to uphold the verbal warning.
The Respondent submits that the Claimant was brought through a performance review process in relation to the year ending December 2018 in or around 25th March 2019. The Claimant was not happy with the outcome of that review and lodged an internal grievance by email of 19th April 2019. There were 5 grounds contained in the grievance as follows:
· The Claimant was informed that her review was capped as a result of the verbal warning issued in November which was expunged and should have been removed from the record
· The review incorrectly stated that the Claimant does not do overtime
· The review records 17 lates during the year
· The review records the Claimant as not complying with continuous improvement principles
· In a second discussion she was advised that it was not the verbal warning but the following 3 items listed above that resulted in her final rating
The investigation into the grievance concluded that:
· The overtime completed was lower than average and lower than those in the strong performance category
· The score in the continuous improvement section is inconsistent for a valued contributor
· There were 6 days of absence during the year
· A verbal warning does cap a performance review however, with or without the verbal warning the scoring was consistent with a valued contributor outcome
· The working hours policy stipulates that an employee must be at his/her workplace at the appointed time
The Claimant was unhappy with the outcome of this stage of the grievance procedure and so she appealed to the next level.
In addition to issues outlined above the Claimant put forward 2 additional grounds as follows:
· That while she had 6 days of absence in 2018 she had 11 days of absence in 2017 but that she got a higher rating in that year
· That the treatment of her was as a result of prejudice which were demonstrated in a meeting with management where she alleged she was challenged regarding her membership of a trade union
The appeal found that:
· In relation to the capping of the review as a result of the verbal warning there was an ongoing investigation at the time of the review in relation to the absence and that the disciplinary matter forms part of a performance review but does not decide the overall review solely. The appeal concluded that the verbal warning would not have impacted the Claimant’s overall rating and that the Valued Contributor rating was fair.
· In relation to claims that she had not contributed to overtime that her contribution was below average in the team, and that her 2018 contribution was “much less” that her contribution in 2017.
· In relation to the “lates” the Respondent’s Working Hours Policy states that “An employee must be at his/her place of work at the appointed time”. The appeal noted that the “excessive” pattern of late attendances in 2018 was not the same as in 2017 and further noted that “all employees will be at their place of work prior to their shift”. In these circumstances the appeal concluded that the Working Hours Policy was applied fairly in this instance.
· In relation to the absences of 2018 vs 2017 that the Claimant had received formal counselling from the relevant supervisor in relation to the absence of June 2018 and that there was as a further absence in October 2018 while that formal counselling was in place in contravention of the Respondent’s Policy. This, together with concerns that her Supervisor had informed her on multiple occasions that she was in breach of the absence notification procedure resulted in her score in relation to absences. The appeal concluded that the policy in relation to absences had been applied fairly in this instance.
· In relation to the issue of not complying with continuous improvement principles the appeal found that there were a number of relevant projects throughout the year that the Claimant could have taken part in.
· In relation to the matter of the management meeting the appeal found that this was prompted due to the Claimant’s inappropriate behaviours at a previous POD meeting where the Claimant’s manager gave feedback about persistent approach to other employees about union membership. The appeal found that while the feedback given at the meeting seemed reasonable it may have been more appropriate to have communicated through a different forum. The appeal found that the question of trade union membership had no bearing on the Claimant’s 2018 performance rating.
· In conclusion the appeal found that there was no evidence of prejudice against the claimant and found that the number of instances of late “clock in”, further absences while on formal counselling, non-adherence to the supervisor notification procedure, lack of involvement in continuous improvement projects and low participation in overtime had a legitimate impact on the Claimant’s rating.
The Respondent acknowledges that there was a procedural error in the issuing of the initial verbal warning. However, the Respondent submits that as the absences were never in dispute and as the Respondent corrected the procedural error the subsequent actions of the Respondent in issuing a verbal warning is “only fair and reasonable”. The Respondent submits that a “reasonable employer in the same position and circumstances” would have done and decided as the Respondent did. The Respondent submits that every organisation has a need for satisfactory standards of behaviour and conduct. While acknowledging that correct procedures were not followed initially the Respondent submits that in order to ensure satisfactory standards of behaviour and conduct the Respondent had decided that the substantive matter (of the October 2018 absence) had not been addressed. After following correct procedure, a verbal warning was issued to the Claimant.
In operating the second procedure the Respondent submits that “all aspects of the disciplinary investigation and disciplinary process were properly conducted. The Claimant was given an opportunity to state her case, was afforded the right to representation at all meetings and was advised of the possible disciplinary sanctions that might arise.
In relation to the performance review the Respondent submits that this was dealt with in accordance with company procedure and in line with natural justice. The Respondent points out that the Claimant’s initial verbal warning was revoked on 17th December 2018 but that following investigation and a further disciplinary hearing a verbal warning was issued on 15th March 2019 and backdated to 26th October 2018. This warning was then due to expire on 26th April 2019. As the date of the Claimant’s performance review meeting was in the week beginning 25th March the warning was still live at the time of the performance review and therefore was validly taken into consideration in relation to the year ending December 2018. The Respondent further submits that the rating would still have been the same even in the absence of the verbal warning based on the other areas under consideration.
The Respondent submits that the sanction resulted wholly from the Claimant’s own conduct and asks that the Adjudicator so find.
I have considered carefully the written submissions provided by the parties and the verbal submissions given during the hearing, as well as post hearing documentation submitted by the Respondent.
There are three questions which I must consider:
· Was it reasonable and fair to issue a second verbal in the circumstances described
· Did this warning significantly impact the ratings at the end of year performance review
· Was this matter pursued by the Respondent because of her trade union membership
In the matter of the first verbal warning there is no dispute that this warning was issued outside of the Respondent’s own procedures and the Respondent’s own internal process so found. However, I note that the Respondent’s Disciplinary Policy provides for 3 possible outcomes to an appeal as follows: the outcome holds, the outcome is altered, or the outcome is removed. The manager who heard this first appeal took the third option when she revoked the warning. However, she went on to remit the substantive issue of the absences in October to another manager for investigation and thus the entire disciplinary process was re-started. In every subsequent disciplinary, appeal and grievance meeting thereafter the various managers involved continued to adopt this approach. I note that the Respondent’s Absence Policy states that if there is another occasion of absence while the Formal Counselling is still live then a Verbal Warning may be issued.
In relation to the above I do not consider it reasonable to re-start the entire disciplinary process once the original sanction had been revoked. The Respondent erred in how the first disciplinary process was managed. The Claimant raised valid points in relation to that procedure and these arguments were upheld by the initial appeal. That should have ended the matter. I do not accept that a reasonable employer in the same position and circumstances would have done and decided as the Respondent did. I consider that a reasonable employer would have accepted that management had gotten it wrong in terms of the procedure, would have discussed the need for positive attendance with the Claimant and would have closed the matter. I find myself asking the question “how many times would be acceptable for an employer to get something wrong and begin again to make sure they got it right”?
In addition, I noted a number of other deficiencies within the procedure. It is clear throughout the documentation provided in relation to those disciplinary meetings that at each stage of the subsequent procedures each manager involved was aware of the previous sanction and of the fact that it had been revoked. In these circumstances it is not credible to suggest that the Claimant would receive a fair and impartial hearing of her case. The Respondent’s Policy prevented the Claimant from being represented by the representative of her choice and so the Claimant could only be accompanied by a colleague. I noted that on most occasions management were accompanied by a HR professional. During the disciplinary investigation no real attempt was made to investigate. The only matters considered were whether a Formal Counselling was in place and whether sick leave occurred on the relevant dates. I note that the Respondent’s Absence Policy provides for review by a medical professional, yet this was never explored or considered.
Taking all of the above issues into account I find that the Respondent acted unfairly and unreasonably in re-starting the disciplinary process and in issuing the second verbal warning.
In relation to the matter of the impact of this verbal warning on the Claimant’s performance review rating I sought further information from the Respondent in relation to the scoring methodology, and the reasons for the different scores achieved by the Claimant in 2017 and 2018. The Respondent agreed to provide this information, and this was accepted by the Claimant. Copies of those documents were provided to the Claimant when submitted to the WRC and at that time the Claimant’s representative objected to them being considered. Notwithstanding those objections I have taken those documents into account as their submission had been agreed at the hearing.
In relation to those documents I note that I did not receive specific scores for the Claimant for the 2 years under consideration. I note also that while I did receive information that set out broad headings and overall scores attributable to those headings there was no detail of what criteria was to be considered, what scores were to apply to those criteria nor what score the Claimant received in relation to those criteria.
In these circumstances I examined the substance of the outcome of the appeal on this matter. Specifically, I noted that the appeal found that the verbal warning of itself did not result in a lower rating in 2018 but that the issues relating to lates, low participation in overtime and lack of involvement in continuous improvement projects also impacted the rating. In relation to the absences in 2017 vs 2018 the appeal concluded that it was not the number of absences but the fact that the third instance of absence took place while a Formal Counselling was in place that contributed to the lower rating.
On reviewing the documentation provided I noted that of the 17 lates the majority were less than 5 minutes. It seems to me that no employee should not find themselves surprised by these matters being addressed in an end of year review if the matter has not been brought to attention earlier in the year. No evidence was provided that these matters had previously been addressed.
In relation to the Claimant’s participation in overtime I note the Respondent’s position that the amount of overtime undertaken was lower in 2018 than in 2017 and that the Claimant’s contribution to overtime was below the average for the team. The documentation provided clearly demonstrates that the Claimant worked 19.25 hrs in 2017 and worked 9hrs in 2018. The documentation also shows that a considerable number of employees decreased their overtime commitment in 2018. I noted that there were 3 fewer employees in 2018 and that of the remaining 31 staff, eight reduced their overtime commitment. It is clear from this information that the Respondents assertions in this regard are correct.
No evidence was presented by either party in relation to participation in continuous improvement projects.
In relation to the second verbal warning I note that the Claimant had a total of 6 days of absence in 2018 and 11 days of absence in 2017. The Claimant contends that this matter was only addressed with her formally following the issues which arose in relation to her trade union membership. The Respondent contends that she received the Formal Counselling in relation to the level of absence in 2018 and received the verbal warning as a result of having another occasion of absence while that Formal Counselling was still live. In addition the Respondent contends that issues raised with the Claimant in relation to her failure to notify her Supervisor of her absence was also taken into account. I have reviewed the documentation provided in relation to the original disciplinary correspondence and this does not make any mention of a breach of notification procedures, nor was this matter raised in the Formal Counselling letter which issued in June 2018. The first occasion where I find a reference to this breach of notification procedure is in the response to the grievance relating to the performance review rating. Frankly I do not find it credible that this matter resulted in a lower rating.
Taking all of the above into account I find that Respondent did consider other matters i.e. lates and low contribution to overtime as part of the year end performance review. However, in the absence of the specific scores attributed to the Claimant it is not possible to be definitive as to which issue(s) impacted the rating. Notwithstanding the lack of documentation, I find that the process used is not open and transparent and that the Respondent cannot clearly now demonstrate how the performance rating was arrived at. It appears no specific documentation exists which can demonstrate the rating process objectively. In these circumstances I find that the Claimant is justified in her assertion that the verbal warning negatively impacted her performance rating.
In relation to the Claimant’s assertion that the issue arose as a result of her trade union activity I note that the Claimant submits that the issues arose soon after the meeting where there was an altercation between her and a manager in relation to this matter. I also note that the Claimant submits that the respondent does not recognise trade unions. I note that the Respondent denies that this matter is in any way related to the Claimant’s trade union membership. The Respondent affirms their right not to recognise unions.
I am of the view that the proximity of the above meeting to concerns regarding absence being addressed formally by the Respondent is in itself insufficient to demonstrate that the actions of the Respondent were as a result of trade union membership. If every citizen has the constitutional right of association so too must a citizen have the right not to associate. The Respondent, in not recognising trade unions, is merely exercising that right. As no real evidence was put forward to support this assertion I find that the Respondent did not act against the Claimant as a result of her trade union membership or activity.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
In relation to the second verbal warning issued, although no longer live, I recommend that it should never have been issued and that the re-starting of the disciplinary procedure should never have taken place. I therefore recommend that all documentation relating to this matter be removed from the Claimant’s file.
I further recommend that the Respondent pay the Claimant the sum of €700 compensation in full a final settlement of the above matters.
In general terms I recommend that the Respondent review it’s Absence Policy in order to bring greater clarity to the obligations of employees, to assist managers in understanding their responsibility to follow procedures and to use their discretion. I also recommend that the Respondent review the methodology for rating staff performance as part of the annual review taking into account the issues that arose in this matter.
Workplace Relations Commission Adjudication Officer: Patricia Owens